Search the Lounge


« Indiana-Indianapolis Seeks Tax Law Visitor | Main | "Open Classrooms Week": An Experimental Peer-to-Peer Focus on Law Teaching »

March 30, 2012


Feed You can follow this conversation by subscribing to the comment feed for this post.


Good nurse! Scalia didn't say he didn't or wouldn't read the statute.
(In fact, all the Justices appeared to be only vaguely aware of the non-germane provisions. Listen, e.g., to the way Justice Breyer referred to the "Indian" provisions.)
Justice Scalia referred to going thru the 2,700 pages to make a provision by provision assessment of those provisions
Frankly, I think most reasonable people would agree that allowing the Court the power to conduct such a process might be problematic. Indeed, wrong, some would say.
In other words, the process that you insist upon (assuming that you are not just ignoring the difference between reading the statute and the severance issue) might be a huge error in Constitutional jurisprudential terms.
Or, would you suggest the Supreme Court go thru the 2,700 pages line by line to determine what stands if the mandate falls?
Also, given you are ascribing such importance to comments by the Justices during oral argument, what did you make of Scalia's comment that surely, if the "corn husker kickback" fell, no one could say the whole bill fails?
Perhaps that also can be spun to mean he doesn't think it is necessary to read the whole bill.

Ray Campbell

I had the same reaction you did, David, although I find it hard to think he really meant what he seemed to be saying.

The biggest impact is on the legitimacy of the Court, and Scalia's little quip is one more brick in the "political, irresponsible Court" wall. It may not be necessary for members of the Court to take their jobs seriously and to actually read a statute in its entirety before deciding whether parts can be severed. For the long term health of the institution, it is necessary for the public to believe that the Court makes that kind of careful, diligent, unbiased inquiry.

It was also my experience as a law clerk and a lawyer that you sometimes actually understand a statute better if you give it a close read. Yeah, it's work, but that's the game we're in.

My guess is Scalia will find a way to backtrack on his quip. You can't be a textualist without reading the text and understanding its structure. I also don't think many folks would say he has a history of being a lazy judge. Look for him to make some statement at some upcoming appearance that 'clarifies' this. We will be told, I expect, that we misunderstood him.


JUSTICE BREYER: I would say the Breast Feeding Act, the getting doctors to serve underserved areas, the biosimilar thing and drug regulation, the CLASS Act, those have nothing to do with the stuff that we've been talking about yesterday and the day before, okay?
So if you ask me at that level, I would say, sure, they have nothing to do with it, they could stand on their own. The Indian thing about helping the underserved Native Americans, all that stuff has nothing to do. Black lung disease, nothing to do with it, okay?
So that's -- do you know what you have there? A total OFF-THE-CUFF impression. So that's why I am asking you, what should I do?
My my. Shouldn't we condemn an "off the cuff" expression! Shouldn't Justice Breyer have studied "the Indian thing" and been on top of it, not "at the level of an off the cuff impression" but from the point of view of a diligent Justice who had read the statute carefully?
How could Justce Breyer ask a lawyer: "What should I do?"
How could he???
Why, this sort of thing destroys the very fabric of our democracy!

David S. Cohen

Ray - indeed.

And for the two anons who want no one to know who is writing such clever snark, I'll assume the first is Justice Scalia himself, who still doesn't know that the Cornhusker Kickback is not a part of the enacted law, and the second is someone who has never been to an oral argument where the entire point is that judges are getting lawyers' opinions on what the court should do. But unlucky us, we'll never know the truth because they're hiding behind anonymity!


Actually, posting as anon avoids the personal attacks to which some folks who post here are sometimes so prone. In court, this sort of argument is rarely allowed, as I'm sure you know.
Re: the Cornhusker kickback. SOOOOO LITERAL! That was the problem with your first post. Scalia postulated a "venality" rule that would have invalidated the deal, and then asked whether invalidating an instance of log rolling would (or should) be deemed to invalidate an entire statute. It was a "hypothetical" ... no one, not Scalia, and certainly not my post, held up this provision, or Scalia's "venality rule" as applied to an instance of a sweetener in a bill as an actual provision or test.
I simply assumed, incorrectly I now realize, that you had read the transcript.
Re: never being to an oral argument. To the contrary, of course. But, this sort of attack seems to be in keeping with the other ad hominum attacks.
Why not comment on Breyer's remarks? He was admitting that he hadn't studied the entire bill to determine whether each provision was so linked to the mandate as to require that it fall with it. Just like Scalia, he was asking for a principled way to approach the matter.
As for my sarcastic comment about asking an attorney what to do, again, you seem to take every statement literally, without context. I was modeling a sort of obvious and risible overreaction to Scalia's comments to demonstrate the weakness in that approach.
Now that I understand that your approach is entirely serious and that you actually believe that Scalia did something wrong as evidenced by his 8th Amendment joke, I won't bother to debate the merits of any of this with you any further.

James Grimmelmann

This is a terrible idea. The question is not what level of preparation we should ask of Supreme Court justices. Put this way, more is always better, and yes, if they read 2700 pages of statutory text, they'll understand the issues in the Affordable Care Act case better. But that comes at a cost. Each hour they spend reading the statute is an hour they can't spend reading the amicus briefs more closely, or an hour they can't spend drafting their opinions, or an hour they can't spend on another case entirely.

The true question is, given that we have nine Justices, how we should ask them to allocate their time. And I doubt that reading 2700 pages of the Affordable Care Act is a good use of their time. I would rather have the Justices rely on the parties and amici to call their attention to the salient parts of the statute, and to read from there only as seems reasonably likely to help their understanding significantly.

Perhaps it's bad form for the Justices to call attention to the fact that they don't personally read the full text of every statute before them. Perhaps they sometimes miss something or get issues wrong in ways that further reading would have helped with. But a blanket "read everything" rule is unlikely to improve the aggregate quality of the Supreme Court's work product.


I'm sympathetic to the idea that Justices should generally read the statutes they are about to strike down, but surely the extremist position (that they must always do so before striking a statute down, no exceptions) can't be right. Otherwise, the easy and obvious thing for Congress to do is just enact really, really long statutes that no one human being can possibly finish reading in his lifetime--since you apparently think that it is OK for congressmen not to read but not OK for justices--and thereby immunize statutes from judicial review.

Ray Campbell

The reductio ad absurdum works in the other direction as well. They would have more time for drafting and for other cases if they arrived at oral argument and announced, "I don't need to read the statute, the precedent, the briefs or the academic commentary. I think this law is a good/bad idea based on my sense of what is good political policy, and will rule accordingly."

Yes, it takes time to understand how a statute is structured. Yes, reading every fine print word may not be necessary, and, yes, relying on guidance from counsel can expedite the task. But, just as surely, it is terribly corrosive to the sense of institutional integrity to make a joke of reading a really, really important statute that you are poised to strike down.

Having said my share of stupid things, I sympathize with Scalia. He needs to roll what he said back sooner instead of later, though. If they strike down the statute with that still hanging out there we will never hear the end of it.

James Grimmelmann

Ray, I agree that "judges should never read statutes before them" is just as absurd as "judges should read every word of statutes before them." Thank you for helping prove my point, which is that per se rules about how much judges should read don't make sense.

David S. Cohen

I think "read every word" is a strawman that wasn't in the original post here. You can read a statute without reading every word of it. But, I think any judge considering whether to conclude that a statute is unconstitutional needs to read the statute and not just rely on what others say about it.

I completely agree with Ray - the damage to institutional integrity done with this quote needs to be addressed. (I know, it won't.)

Ray Campbell

I think the point is whether Scalia did the Court any favors with his attempt to be the witty one. It's really going for the capillary to argue that perhaps a judge can skip reading parts of a long statute. The question is, should he mock the idea of reading statutes while hearing arguments in an unusually significant and politicized case? That he might be able to justify not reading every word of every statute does not, for an instant, make it less of a bonehead move to make light of the process in such a case.

James Grimmelmann

I took your disparaging response to Scalia's "You really want us to go through these 2,700 pages" to mean that you want Supreme Court Justices to go through all 2,700 pages.

The comments to this entry are closed.


  • StatCounter
Blog powered by Typepad