By James Fallows
From a New York Times account account of a Supreme Court colloquy on what will happen when — OK, "if" — five or more Justices vote to overturn the individual-mandate provision in the Obama health care bill:
Justice Antonin Scalia [right, from Wikipedia] said an analysis of how to proceed could not be divorced from the realities of the political process in Washington, which he said was beset by "legislative inertia."
"My approach would say if you take the heart out of the statute," he said, "the statute's gone."
He explained his reasoning: "You're not going to get 60 votes in the Senate to repeal the rest. It's not a matter of enacting a new act. You've got to get 60 votes to repeal it. So the rest of the act is going to be the law."
Sigh. For those joining us late: according to — what's it called again? Oh, yes, the "Constitution" — it takes a simple majority in the Senate to get things enacted, or repealed. These days that means 51 votes, not 60. Could Scalia have been thinking that 60 votes are necessary to override a presidential veto — which is what a repeal of the health care law would involve if President Obama remains in office? No. Under that tricky "Constitution" again, a veto override takes a two-thirds vote in the Senate, or 67 votes, plus two thirds of the House as well.
If he wasn't referring to an override, I guess the answer is that even a sitting Justice on the Supreme Court has fully internalised the modern de facto amendment of the Constitution under which "you've got to get 60 votes" to get any business done, because business of any consequence will be filibustered. And of course he's in a position to tell us what the Constitution "really" means.
I fully realize that this was not the most egregious comment to come from the bench yesterday. On that I give you our own Andrew Cohen and Derek Thompson — or the American Prospect's (and recently the Atlantic's) Garrett Epps, or Slate's Dahlia Lithwick, or the New Republic's Jonathan Cohn, or the New Yorker's John Cassidy or Jeffrey Toobin, and down through a list that could cover 50 additional names. These may bleak days for jurisprudence, but they are brighter if you think about the way today's Internet-based news system improves on the range, depth, timeliness, and traceability of analysis of public events. (Traceability? Here are transcripts of all three days' worth of arguments, downloadable and searchable from many places including our site.)
I will try to add my own log to this pyre of analysis later on. For now, this is just a note of how Scalia has yet again expanded our understanding of "originalism."
This post was originally published at The Atlantic.
30 March 2012