The Smug & Self-Satified Health Care Dissent, Featuring Justice Scalia as the Ultimate “Mean Girl”

(Guest blogger: Emma Greenman, JD, MPA)

 I planned to move onto politics, but  I just couldn’t resist discussing the Dissent. Always more  snarky, usually more fun to read!

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Justice Scalia’s over the top Dissent in the Arizona decision (discussed in my last post) set a high bar for what I thought would be an angry, finger-waving tirade in Thursday’s health care ruling.

But alas, it was much less fun to read. The Dissent read more like a condescending letter from a bunch of mean girls than a robust defense of their position to declare President Obama’s signature policy unconstitutional.  And leaving aside the speculation that the Dissent was really written as a Majority Opinion (which I don’t buy), if I’d known that Scalia really blew most of his vitriolic prose on the Arizona decision, I probably won’t have slogged through all 63 pages of the Dissent.

Overall, I found the conservative Dissent  condescending and snarky. There was the expected self-serving hyperbole about the individual mandate; Upholding the Commerce Clause use “is to make mere breathing in and out the basis for federal prescription.” Really, Justice Scalia—you think a democratically elected Congress that can’t pass benefits for September 11th survivors after this ruling will suddenly find the political will to start regulating our respiration?

The three conservative justices went out of their way to attack the Chief Justice for the judicial activism of what most would call a very restrained decision. But that is the backwards world that it seems to me, in which Justices Scalia and Thomas live.  They claim, with no irony, that striking down a President’s signature piece of legislation, in its entirety, is judicial restraint. Instead it is Roberts decision to narrow and uphold the law that is an egregious act of judicial activism.  Even for a wordsmith like Scalia, this argument is thin and unbelievable. There is a reason that no Supreme Court since the 1930’s has struck down a signature piece of a President’s legislation).

The Dissent throws in some unnecessary digs that are snide and juvenile. The Justices highlight Solicitor General’s much maligned  performance during oral arguments (Dissent p. 10). They cajole a minor provision intended to pilot ways to bend the cost curve—”It spends government money on among other things, the study of how to spend less government money”. And of course, they ridiculed elected officials who fought for district specific provisions. In fact the Dissent pans the whole idea of legislative compromise (even as they tout democratic accountability as the reason the Medicare expansion provision must be struck down).

The most telling passage, where these Justices show their true colors, reads: “Article I contains no “whatever-it-takes-to-solve-a-national problem power.”  This statement drips with condescension and reproach for the efforts that democratically elected decision-makers are making to actually address the problems of the day.

The Supreme Court conservatives are so comfortable in the obstructionist role they’ve come to play, that they easily slip in a chiding of Congress and the President for having the gall to try and solve a huge, complex and very pressing national problem. After all, these four Justices with the Chief Justice making five, have gotten good at preventing the nationally-elected branches from implementing good policy to solve pressing public problems. Unlimited campaign spending, gun violence, and workplace gender discrimination—you name it and the Supreme Court has kicked out viable and effective solutions crafted by democratically elected leaders. (I will stop there before I deliver what will assuredly turn into a cable news-like rant).

Lucky for America and the 35 million Americans without insurance, Chief Justice Roberts realized that striking down the health care law would have gone too far.  This time he decided to get the Supreme Court out of the President and Congress’s way.  This ruling just lets the democratically elected branches actually do their job—craft solutions to complicated public problems.