Saturday, March 31, 2012

SCOTUSblog overreacts just a tad

Tom Goldstein, the force behind the excellent SCOTUSblog, has a post severely criticizing the RNC for creating the ad embedded below, which uses the audio of Solicitor General Donald Verrilli's rather infamous stumbling at the beginning of his argument in defense of the individual mandate:

Goldstein's criticism is that the audio is "doctored" because it plays the sound of Donald Verrilli drinking ice water and saying "excuse me" twice, when in fact he only drank ice water and said "excuse me" once. According to Goldstein, this is pretty much as bad as inserting "someone with the same voice as Verrilli saying, 'Mr. Chief Justice, we believe the individual mandate should be upheld because we hate the Constitution?'"

As political ads go, this strikes me as pretty tame. It's perhaps a bad sign when I have to use one of my parenting catchphrases here: "Toughen up."

But Goldstein does make a pretty good point, I think, when he argues that this kind of manipulation for political purposes is why the Supreme Court resists every effort to allow oral arguments to be televised:
the Justices now have before them a perfect illustration of the gross distortion that can instantly be made of recordings of their proceedings.  What is to stop the same misleading stunt being pulled with the Justices’ own oral argument questions and comments?  Nothing at all.
Indeed, one needn't look far to find precisely that. For example, at one point Justice Scalia said that the young, healthy people who choose not to buy health insurance at current prices are "not stupid," the point being that they are making a rational calculation (perhaps right, perhaps wrong) that they would pay more in health insurance premiums than they are likely to pay for health services, so insurance is a bad deal for them. This is uncontroversial; it is the one of the main reasons that the law tries to force everyone to buy insurance: so that insurance companies can make profits while charging lower prices.

But in more than one article this statement has been twisted around to an assertion amounting to "if you are young and you pay for insurance, Scalia finds you 'stupid.'" Yikes.

Then there is this, from the New York Times:
But then came Justice Scalia’s now famous invocation of broccoli. “Everybody has to buy food sooner or later, so you define the market as food,” he said. “Therefore, everybody is in the market. Therefore, you can make people buy broccoli.” Justice Samuel A. Alito Jr. chimed in, asking Solicitor General Donald B. Verrilli Jr. to answer “as succinctly as you possibly can.”
From this account, you would conclude that Justice Alito piled on and demanded a succinct answer to the famous and supposedly tendentious "broccoli question." But he absolutely did no such thing. Scalia raises the broccoli issue on page 13 of the transcript (and the 12-minute mark of the audio file):
Could you define the market -- everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.
Mr. Verrilli gives his answer, and then there is some discussion. Broccoli is next mentioned on page 17, by Chief Justice Roberts:
That, it seems to me, is -- and it's a passage in your reply brief that I didn't quite grasp. It's the same point. You say health insurance is not purchased for its own sake, like a car or broccoli; it is a means of financing health care consumption and covering universal risks. Well, a car or broccoli aren't purchased for their own sake, either.
Shortly thereafter, the argument moves on to other variations on the theme.  Alito never asked a question during the broccoli part of the argument. Much later, Mr. Verrilli sets out what he (correctly, in my view) believes to be the fundamental question:
The question is, is there a limit to the authority that we're advocating here under the commerce power? And the answer is yes, because we are not advocating for a power that would allow Congress to compel purchases.
It is at this precise point, after Mr. Verrilli raises the topic of what limit there is to the commerce power, that Justice Alito speaks:
Before you move on, could you express your limiting principle as succinctly as you possibly can? Congress can force people to purchase a product where the failure to purchase the product has a substantial effect on interstate commerce, if what? If this is part of a larger regulatory scheme? 
This is page 43 and the 45:30 mark of the audio file—a full 33 minuttes after Scalia had the gall to mention broccoli!

After all that, I urge you to go back and read the excerpt from the New York Times article and conclude for yourself whether the false impression it creates is more or less egregious than the false impression created by the RNC ad.

Anyhow, those are just a couple of examples. I've come across many other distortions from people who should know better, but I haven't the stomach to go back and find them.

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