Tuesday, April 3, 2012

Did Scalia regurgitate Tea Party talking points during oral arguments?

I've seen many pundits accuse Justice Scalia of spewing "well-trod Tea Party cleverisms" during oral arguments. For example, Harvard Professor Charles Fried (who was solicitor general under Ronald Reagan in the 80s, but publicly supported Barack Obama over John McCain in 2008) "was appalled to see [Scalia and Roberts, etc.] repeating the most tendentious of the Tea Party type arguments. I even heard about broccoli. The whole broccoli argument is beneath contempt. To hear it coming from the bench was depressing."

I take the charge to be that "Tea Party type arguments" are mere populist propaganda, devoid of intellectual content, spewed by the dirty Tea Party masses at their annoying marches and gatherings. Is the "broccoli argument" an example of this?

Not even close. As far as I know, the progenitor of the broccoli argument was a federal judge, the Honorable Roger Vinson, who first raised it at oral argument and then expounded on it in his written opinion striking down the act. 

Moreover, the broccoli argument was first raised at the Supreme Court in the merits briefs by the Solicitor General himself! (See page 6 of the government's reply brief.) Indeed, Chief Justice Roberts was actually quoting this passage when he asked Mr. Verrilli about the broccoli argument. So lets be very clear what Fried, Lithwick and others are doing when they criticize the broaching of the broccoli argument: they are criticizing the Justices for asking questions about arguments explicitly raised in the merits briefs.

So, my advice to Professor Fried is to take some Prozac, because your depression can't be blamed on Justice Scalia.

1 comment:

  1. Excellent post. Perhaps we should have a tag "everything you think you know about the Obamacare oral argument is wrong."


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