You’re funny, Justice Scalia! You’re a funny man! You’re also a fat-assed, self-congratulatory liar, and a shitty constitutional scholar to boot!

Okay, is that enough persiflage for one headline? Sometimes El Nino gets it right, and the “liberals” (seriously “so-called” liberals, in my book) get it wrong, as in U.S. v. Comstock, in which only Justices Scalia and Thomas had the intelligence to argue that the federal government had no authority to imprison convicted sex offenders beyond the completion of their sentences, on the all too familiar grounds that they “might” commit another crime if released.

But all too often, Scalia goes off the rails, as he did during the second day of oral argument on the constitutionality of the now universally regarded as hanging by a thread 2010 Patient Protection and Affordable Care Act.

Arguing against the idea of voiding the entire act simply because of one offending provision, Nino gave the following hypothetical:

“If we struck down nothing in this legislation but the – what’s it called, the Cornhusker Kickback, okay, we find that to violate the constitutional proscription of venality, okay? When we strike that down, it’s clear that Congress would not have passed it without that. It was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the Cornhusker kickback is bad. That can’t be right.”

As Dave Weigel points out, Scalia doesn’t know what he’s talking about. The “Cornhusker Kickback”—a “Nebraska gets more money than anyone else” provision added in an early stage of the bill’s history to satisfy and gratify Nebraska Senator Ben Nelson—was stripped out of the bill before final passage.

But there’s more to it than that. There is no “constitutional proscription of venality.” It is not unconstitutional to be venal. And, furthermore, even if there were, the Court could not overturn legislation simply on the grounds that something “venal” happened in the course of its enactment by Congress. And, further furthermore, Scalia has frequently made the argument that “legislative history” is irrelevant to the Court’s consideration of a law’s meaning and constitutionality. A law means what it says, not what someone said it was supposed to say, or what we can infer Congress meant it to say, based on what was said or done during the legislative process. So why is Scalia citing legislative history in the case of the 2010 Patient Protection and Affordable Care Act, particularly when the “history” he’s citing is wrong?

Afterwords
There are few things less funny than a Supreme Court justice during oral argument, because no one has the nerve to tell them they suck. Walter Mondale once said “When I was vice president, people laughed at every joke I ever told. When I stopped being vice president, they stopped laughing.”