Is there any point in answering back to Justice Nino's broccoli blithering? Paul Krugman seems to think so

Justice Nino's got broccoli on the brain.

"[T]he second day of hearings suggested that the justices most hostile to the law don't understand, or choose not to understand, how insurance works. And the third day was, in a way, even worse, as anti-reform justices appeared to embrace any argument, no matter how flimsy, that they could use to kill reform."

-- Paul Krugman, on the Supreme Court's health care oral arguments, in the NYT column "Of Broccoli and Bad Faith"

The other day I declined to attempt to parse the shockingly ignorant and irresponsible questioning of the thug-justices during the Supreme Court's oral arguments on the new health-care law. My thinking was that (a) at this point it was no longer necessary and (b) there isn't much point.

After all the Supremes aren't answerable to anyone, and the worst perpetrator, Justice Nino, has been doing it for decades and will undoubtedly continue to do so until his bloated carcass is dragged out of the Court's chambers. For a man always claimed to have one of the great legal minds in, say, the history of Western civilization, the stuff that comes out of his mouth would generally be embarrassing spoken by a backward high school freshman. When he goes into his sarcastic mode, as I observed in (apparently) an earlier draft of that post, he is one of the most loathsome life forces in the known universe.

Dittor for "Mini-Nino," Justice "Sammy the Hammer" Alito, who seems to share the original Nino's fondness for applying what he regards as "common sense" to matters of judicial dispute. It's very much of a piece with the Frothing Right's standard argument that the job of Supreme Court justices, indeed of any judges, is "simply to apply the law (or the Constitution)," end of conversation.

Some of the people who say this are simple-minded enough to believe that such a thing is possible, but you wouldn't think that the opinion of people this profoundly, cosmicaly, cripplingly stupid would be of any consequence. Then there are lots of people who know how stupid the "simply apply the law (or the Constitution)" idea is. They say it because they believe they're lying sacks of doody, who probably believe that right-wingers have an uncontested right to law anytime it's convenient, because they're in possession of, you know, higher truths.

It really doesn't matter who's motivated by which. I think Justice Nino and Sammy the Hammer are smart enough to know they're lying, although in Sammy's case, it's possible that his belief that he by God pulled himself up by his bootstraps means that anyone can and therefore there's no reason why he shouldn't continue to see the job of the courts as protecting the rich and powerful against the inconsiderate, ungrateful importuning of the poor and powerless. Rather self-evidently, then, Justice Sammy's judicial hammer blows aren't based so much on "simply applying the law" as fondly self-regarding reflection on his own life story -- this by one of the most aggressively unreflective humans in public life.

(I do sometimes think that "swing" thug-justice "Slow Anthony" Kennedy really is doing his best to understand legal mattes that come before him and his best just isn't very good. How scary is it that more and more we hear of lawyers framing legal arguments, and even judges writing opinions, in such a way as to conform to the convoluted reasoning of Slow Anthony's recorded opinions, in presumed hope of his having their backs if their cases reach him for deliberation. The mind reels.)

To get back to the health care oral arguments, I think perhaps Paul Krugman is right to insist on pushing back. First, I guess it really is important to have the obvious answers to nonsense like Justice Nino's broccoli blitherings on the record. And second, over the long haul, in some sense Supreme Court justices are answerable to public opinion. It happens ever so slowly and imperfectly, but most justices really do have a level of concern for what they perceive as what "the people" think.

One obvious way in which the "simply apply the law (or the Constitution)" motif dissolves is that if the Court is going to rule on the federal government's constitutional limits in regulating interstate commerce, it has to have a set of understandings about what "commerce" is. Let's go back to Krugman.

Let's start with the already famous exchange in which Justice Antonin Scalia compared the purchase of health insurance to the purchase of broccoli, with the implication that if the government can compel you to do the former, it can also compel you to do the latter. That comparison horrified health care experts all across America because health insurance is nothing like broccoli.

Why? When people choose not to buy broccoli, they don't make broccoli unavailable to those who want it. But when people don't buy health insurance until they get sick -- which is what happens in the absence of a mandate -- the worsening of the risk pool makes insurance more expensive, and often unaffordable, for those who remain. As a result, unregulated health insurance basically doesn't work, and never has.

Of course at this point Nino thinks he has struck to the heart of the matter with his penetrating wit. Or maybe he thinks he's dumped a powerful enough load of bullshit to end a discussion he doesn't see any reason to have, not because of the law or the Constitution but because it doesn't accord with the Law According to Justice Nino.

Professor Krugman insists on having some of that discussion anyway. He knows the thugs of the Roberts Court 5 aren't listening, but maybe he thinks smarter and less dishonest people may be.

There are at least two ways to address this reality -- which is, by the way, very much an issue involving interstate commerce, and hence a valid federal concern. One is to tax everyone -- healthy and sick alike -- and use the money raised to provide health coverage. That's what Medicare and Medicaid do. The other is to require that everyone buy insurance, while aiding those for whom this is a financial hardship.

Are these fundamentally different approaches? Is requiring that people pay a tax that finances health coverage OK, while requiring that they purchase insurance is unconstitutional? It's hard to see why -- and it's not just those of us without legal training who find the distinction strange. Here's what Charles Fried -- who was Ronald Reagan's solicitor general -- said in a recent interview with The Washington Post: "I've never understood why regulating by making people go buy something is somehow more intrusive than regulating by making them pay taxes and then giving it to them."

Indeed, conservatives used to like the idea of required purchases as an alternative to taxes, which is why the idea for the mandate originally came not from liberals but from the ultra-conservative Heritage Foundation. (By the way, another pet conservative project -- private accounts to replace Social Security -- relies on, yes, mandatory contributions from individuals.)

Krugman notes that Charles Fried doesn't believe there's actually been a change in legal thinking. "Mr. Fried thinks that it's just politics -- and other discussions in the hearings strongly support that perception."

I was struck, in particular, by the argument over whether requiring state governments to participate in an expansion of Medicaid -- an expansion, by the way, for which they would foot only a small fraction of the bill -- constituted unacceptable "coercion." One would have thought that this claim was self-evidently absurd. After all, states are free to opt out of Medicaid if they choose; Medicaid's "coercive" power comes only from the fact that the federal government provides aid to states that are willing to follow the program's guidelines. If you offer to give me a lot of money, but only if I perform certain tasks, is that servitude?

Yet several of the conservative justices seemed to defend the proposition that a federally funded expansion of a program in which states choose to participate because they receive federal aid represents an abuse of power merely because states have become dependent on that aid.

Justice Sotomayor seems to have had here a moment of epiphany as to what the kind of legal minds she's signed on to co-adjudicate with.

Justice Sonia Sotomayor seemed boggled by this claim: "We're going to say to the federal government, the bigger the problem, the less your powers are. Because once you give that much money, you can't structure the program the way you want." And she was right: It's a claim that makes no sense -- not unless your goal is to kill health reform using any argument at hand.

As I said, we don't know how this will go. But it's hard not to feel a sense of foreboding -- and to worry that the nation's already badly damaged faith in the Supreme Court's ability to stand above politics is about to take another severe hit.

I think Krugman's response is intellectually much more satisfying than mine -- i.e., throwing up my hands and saying "what's the use?" Whether his response will accomplish any more remains to be seen. I suppose it might be used as part of a campaign to educate the screamingly uneducated body politic of America. But I wouldn't hold my breath.

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