Legal Levity: Moments of Humor During Historic Hearings

Supreme Court Justice Antonin Scalia was one of the justices making the occasional joke today. (Courtesy: U.S. Supreme Court)

Supreme Court Justice Antonin Scalia was one of the justices making the occasional joke today. (Courtesy: U.S. Supreme Court)

It was the hottest ticket inside the Beltway–the Supreme Court’s hearings on the federal health care law. Kaiser Health News reporter Phil Galewitz was determined to get in, but didn’t have a press pass (and no member of Congress gave him one, either). Instead–just by standing in line–he got in.

There were two sets of arguments today. For the earlier arguments, Galewitz only snagged a “three-minute pass” then parlayed it into a full six minutes. But for the second hearing about the Medicaid expansion, he got a special “gray” ticket for the full, one-hour session.

Galewitz picks up his story from there–and it turns out the Justices can be funny:

After making my way through a magnetometer, then up about 25 marble steps — with a brief a stop at a 25-cent locker to store all my electronics and other bags — and through another metal detector, I was ready to enter the chamber. My seat was in the rear, about 15 rows from the front, but afforded a full view of all nine justices.

Justice Elena Kagan took the offensive from the start, focusing her attention on Paul Clement, the 26 states’ plaintiff attorney, who argued that the Medicaid expansion was coercive to states and, thus, unconstitutional. “There’s no matching funds requirement, there are no extraneous conditions attached to it, it’s just a boatload of federal money for you to take and spend on poor people’s healthcare,” Kagan said. “It doesn’t sound coercive to me, I have to tell you.”

All the liberal-leaning judges — including Sonia Sotomayor, Stephen Breyer and even soft-spoken Ruth Bader Ginsburg — attacked Clement’s argument.

While the subject matter got deep very quickly, Justice Antonin Scalia was a reliable source of  levity. When Clement said he had three reasons why the Medicaid expansion was illegal, Scalia interrupted: “What are your second and third? I’m on pins and needles.” The courtroom erupted in laughter.

Scalia even started one question by saying: “Mr. Clement, the chief (justice) has said I can ask this.” Roberts interjected, “He doesn’t always check first.” More laughter from the court.

Scalia even brought a touch of Hollywood to the exchange, comparing the health law’s funding for states to expand their Medicaid programs — which he called “coercive” — to an old Jack Benny joke.

“I think you know the old Jack Benny thing, ‘your money or your life,’ and, you know, he says, ‘I’m thinking, I’m thinking.’ It’s funny, because it’s no choice. You know? Your life? Again, it’s just money. It’s an easy choice. No coercion, right? I mean — right?”

Scalia put the government’s top lawyer on the hot seat when he asked Solicitor General  Donald Verrilli Jr. to name a situation where federal money to states would be seen as coercive. When Verrilli said he could not think of a case, Scalia said, “I can’t think of one. I’m not blaming you for not thinking of one.” More laughter.

Even Verrilli elicited some laughter.  After he gave a particularly weak response to Roberts’ concerns about the constutionality of the Medicaid expansion, Robert said he had 15 minutes of additional time to make his case. “Lucky me,” Verrilli replied.

While the courtroom was packed with nearly 500 people, it was library quiet. At least six security guards stood watch, making sure no one spoke out, ruffled papers too loudly or even stood in the back.

At 2:24 the final hearing was over, and Roberts gaveled the session to a close.

And now we wait for a ruling.

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