Antonin Scalia

Did Scalia Parrot Fox News During Health-Care Arguments?

The justice more than once cited arguments that are suspiciously similar to those on Fox News, writes Matt DeLuca.

Brian Kersey / AP Photo

Is Roger Ailes clerking for Supreme Court Justice Antonin Scalia?

One might be forgiven for thinking so following last week’s oral arguments on the health-care law before the nation’s highest court.

As has been pointed out elsewhere, some of Scalia’s questions from the bench made use of the tone and even the diction of the attacks on the Affordable Care Act frequently heard on Fox News and conservative talk-radio shows.

After Scalia picked up on the idea that a government empowered to have its citizens buy health insurance or face a penalty may also strong arm them into buy some other good, such as broccoli, Charles Fried, who served as solicitor general under President Ronald Reagan, told The Washington Post that the court was trumpeting “the most tendentious of the Tea Party arguments.”

“I even heard about broccoli,” Fried said. “The whole broccoli argument is beneath contempt. To hear it come from the bench was depressing.”

On the second day of arguments, Scalia did indeed invoke the humble crucifer.

“Why do you define the market that broadly?” Scalia asked Solicitor General Donald Verrilli. “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.”

Scalia was far from the first to use the idea. That distinction may go to C. Roger Vinson, a federal judge in Florida, who brought up the broccoli-as-health-care analogy during one of the earliest cases against the ACA, in December 2010.

In that case, Ian Gershengorn, an attorney with the U.S Justice Department, had argued that the government can constitutionally regulate the purchasing of health-care insurance under the Constitution’s Commerce Clause. In response, the states’ attorney, David B. Rivkin, contended the government cannot regulate what citizens choose not to do (such as not buy health insurance).

Vinson asked Rivkin, “They can decide how much broccoli everyone should eat each week?”

“Certainly,” Rivkin replied.

(Rivkin, an attorney at Baker & Hostetler in Washington D.C., told The Daily Beast that this wasn’t the only time he used a food product as a way to illustrate what he saw as flaws with the individual mandate. Recalling a previous debate with Fried, Rivkin said, “I got him to agree that if you can support the insurance purchase mandate you can support a mandate to purchase Froot Loops.”)

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Ultimately, Vinson ruled that the health-care plan’s individual mandate was unconstitutional, and on those grounds found the entire piece of legislation to be unconstitutional, but when Fox reported on the case, Vinson’s broccoli remark led the story.

Then, in early February, Fox News picked up the thread, when one of its guests, Chapman University law professor John Eastman, said, “If the government can order you to buy health insurance it can order you to buy broccoli, it can order you to buy General Motors cars.”

Fox legal analyst Andrew Napolitano jumped in. “I don’t see where they found in the Constitution the authority for the Congress to force you to buy something,” Napolitano said last July on Fox. “Not a hat in the sun, not broccoli at dinner, but health insurance.”

By the time Scalia weighed in last week, the broccoli analogy had acquired slightly more legal nuance, but it was essentially the same.

To be fair, the analogy had spread beyond Fox News by that point, so Scalia could’ve picked it up in any number of places. But the justice may have betrayed his evening-TV habits on the final day of arguments, when he brought up the Cornhusker Kickback, a supposed deal that had become shorthand in certain circles for the alleged underhanded politicking that had jammed the health-care bill down the American gullet.

In brief, the Kickback was reportedly a deal cut between the Senate’s Democratic leadership and Sen. Ben Nelson of Nebraska, a Democrat who had resisted health-care reform.

Nelson selling his soul for 30 pieces of socialist silver was a favorite Fox News fable going all the way back to 2009, when the network reported on the concession that they also called the “Nebraska windfall,” quoting Republican senators who alleged that palms had been thoroughly greased.

In March of 2010, Sean Hannity brought up the deal on his Fox show while speaking with Sen. Jim DeMint of South Carolina.

“Senator DeMint, there’s been a lot of focus on this program and elsewhere, talk radio certainly has been all over this … the Cornhusker Kickback, the Louisiana Purchase, the exemption for states, the corrupt process, the bribery, the backroom deals, we went over all that with a fine-tooth comb,” Hannity said.

But as several news sources had already reported by then, the $100 million in Medicaid funding that Senate Majority Leader Harry Reid had apparently offered Nelson had been removed before the health-care bill was released in February 2010.

When Scalia brought up the deal from the bench last week, he sounded casually indifferent to—maybe even ignorant of!—its provenance.

“That would mean if we struck down nothing in this legislation but the—what’s it called?—the Cornhusker Kickback … when we strike that, down it’s clear that Congress would not have passed it without that,” Scalia said. “It was the means of getting the last necessary vote in the Senate. “

Of course, he was wrong. But if he gets all his news from Fox, how would he know?

After the oral arguments ended, Fox completed the circle, crowing over Scalia’s performance. “Scalia Burns Obama Lawyer: You Expect Us to Read 2,700 Pages?” chortled the headline of one post on Fox’s site. “Democrat’s Furious at Scalia,” screamed another.

And Napolitano, his views confirmed by one of the nation’s top judges, wrote a column on March 29 that mentioned Scalia and hammered home his favorite point: “If Congress can compel you to buy health insurance because that’s good for you and for the country’s economic health, he asked, can it force you to eat broccoli?”