Scalia, Fox's Man in Washington?

By Matthew DeLuca, The Daily Beast

05 April 12

The Supreme Court justice more than once cited arguments that are suspiciously similar to ones made often on the right wing’s favorite news source, writes Matt DeLuca.

s 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.

Supreme Court Justice Antonin Scalia speaks to students at the University of Chicago Law School on Monday, Feb. 13, 2012 in Chicago. , Brian Kersey / AP Photo

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.”)

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.