What Scalia said was:
What about Congress? You really think Congress is just going to sit there while all of these disastrous consequences ensue? I mean, how often have we come out with a decision such as the you know, the bankruptcy court decision? Congress adjusts, enacts a statute that takes care of the problem. It happens all the time. Why is that not going to happen here?What got the laugh was the response — "Well, this Congress?" — from the Solicitor General.
Steve Benen, whose headline I've used as the post title, fails to appreciate the comic skill of the straight man. As Jerry Seinfeld once explained:
Where did the idea of, in Seinfeld, your character being a comedian for a profession, but be the straight man for your friends, come from? I always thought that juxtapositioning for the show was genius.The straight man doesn't get the laughs, but he's setting up the humor. It's Scalia, not the Solicitor General, who deserves credit for that comedy. To say that his contribution was unintentional is to ascribe a ridiculous naivete to him. An honest person — that is, a person not in a lawyer role — answering the question "Why is that not going to happen here?" would describe the story of how one party rammed the Affordable Care Act through Congress, without any buy-in from the other party, and without building any consensus among the people, who were told to quiet down and wait and see that it would ultimately turn out to be good. The people subsequently shifted control of Congress to the party that had zero buy-in. Scalia knew all that when he asked his question. The humor already inhered. It's very dark humor, of course. The Solicitor General — tasked with upholding the work of a party that wielded power ruthlessly and consequently lost it — succeeded in lightening the humor, but that doesn't deserve comedy credit. It deserves lawyer credit.
Very good observation and analysis on your part, Baxter. You are truly exhibiting a good comedic eye. The reason I would play straight was it was funnier for the scene. And very few people have ever remarked on this, because it was a conscious choice of mine, only because I knew it would make the show better, and I didn't care who was funny as long as somebody was funny and that the show was funny. So you have hit upon one of the great secret weapons of the Seinfeld series, was that I had no issue with that.
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I've written here before, and I write again, speaking as someone with 34 years of experience addressing judges:
There are two rules about jokes at oral argument.
(1) Every joke told by a judge is funny.
(2) Every joke told by anyone else is wrong -- a risky, imprudent departure from the advocate's duty to his client.
I think Carvin's "Well, if you're going to ruin my ten minutes." comment was funnier.
The lawyers just put the Constitutional Law issue on the table: Who needs a steenkin gringo Congress anyway? A Powerful Ruler and his appointed Administratrices act at will and a Kangaroo Court twist itself into a claque of theory applauding the Will to The Power.
"Every joke told by anyone else is wrong -- a risky, imprudent departure from the advocate's duty to his client."
But that underlines my point... in one or both of 2 ways:
1. It's really Scalia's joke, and the SG is just acknowledging it.
2. The serious answer to the question would require the SG to say things that are damaging to his client, so his levity is desperation. The alternative is worse.
The Supreme Court's role is not to fix faulty legislation. It's to fix the faulty Constitution.
all joking aside, whether "this Congress" or some other Congress changes the law to reflect a correct Court ruling that subsidies are not allowed on federal exchanges is completely irrelevant to the issues presented in this case. The Constitution has no parties. As far as this analysis is concerned, Congress passed this law, not a Democrat controlled Congress.
Scalia is an advocate too. He's trying to convince a couple of his Republican colleagues, Kennedy and Robert, to stay with the team. Does his joke setup work on that level?
The point was that, if the President and Congress could cooperate, then law could be fixed.
If the original bill had not been the monstrosity it was, a normal legislative process would have avoided all this.
Scalia should have shut him up with the response:
"So, you're saying we should base our ruling not on the law, but based on whichever party happens to control congress at the present moment?"
What's funny is — that hysterically ridiculous Congress clown was sitting right in the middle of the front row during oral arguments yesterday. Yes, this Congress clown.
"Yes, this Congress clown."
The amazing thing about Pelosi is that you can have anal sex with her face.
It is not supposed to be that way, but there you go. Anal sex with her face. Pelosi.
I am Laslo.
And, apparently, I am Laslo's straight man.
Former "Sphincter of the House", Nancy Pelosi?
Meade, the straight man gets top billing should you and Laslo take this on the road.
The lawyer's humor was opportunistic courtesy Antonin Scalia.
"The amazing thing about Pelosi is that you can have anal sex with her face.
It is not supposed to be that way, but there you go. Anal sex with her face. Pelosi."
Still, some of us would consider even that to be abnormal sex.
These Republicans are meanies, so separation of powers doesn't matter, normal statutory interpretation protocols don't matter, nothing matters but the result we want. Hell, it works for the Media (Repubs saying no are a "do nothing Congress," Dems saying no are courageous and principled), why shouldn't it work for the SCourt?
It constantly amazes me how much the press accepts the rationalization that the congress, duly elected by the people, cannot be allowed to open this law up again.
It took The Andy Griffith Show about a year to realize that Andy Taylor should be the straight man instead of the loud, broad-grinned comedian.
By year three they had it down. Comedy gold ensued.
There was something similar with Animal House's John Vernon. The story goes that Vernor kept asking how he should play Dean Wormer funny and John Landis kept telling him to play it straight because it will be funnier that way.
Louis C.K. on 05/22/2010*:
“also sorry i said that sarah pallin needs a penis cake shoved up her hairy, smelly asshole. oh wait i hadn’t said that yet. anyway sorry.”
Blogger Laslo Spatula said...
"Yes, this Congress clown."
The amazing thing about Pelosi is that you can have anal sex with her face.
It is not supposed to be that way, but there you go. Anal sex with her face. Pelosi.
That's gold Laslo,GOLD!!
Kudos, LOL Thread winner.
Your best one yet, keep 'em cummin'.
The mediaswine at MSNBC actually believe Scalia is naive and also stupid.
Prof. Althouse, yes, I was intending to express agreement.
The SG was almost -- not quite, but almost -- prodded by Scalia into admitting that the Administration of which it's a part thinks there's one set of rules for Democrats and their legislation and their executive orders, and a completely different set for Republicans. The SG made a wisecrack to avoid saying, "But Mr. Justice Scalia, that'll never happen because it's the Republicans who hold Congress now."
So yes: Desperation, and very close to a worse (more damaging=more truthful) admission.
Scalia is a pretty smart guy.
He wasn't talking to the lawyers, or us, or the media.
It was a very clear message to his fellow judges.
"Well, this Congress" is a punchline that cuts both ways.
If "this Congress" were Democratic, Obama would have no trouble asking for a legislative fix. The moment where the health care law became inviolate and unchangeable was the moment when Scott Brown won the election and any changes would require Republican votes.
Right now, Obama has a blocking coalition in Congress, but not a legislative coalition. So he tries to do everything via dubious administrative law, and doesn't let anything go to Congress.
There are no Constitutional issues at play in this lawsuit. Congress could fix everything with a one line bill, passed by an oral vote. The question is whether Obama has to negotiate in order to get that one line fix, or if he can get it for free by ignoring the law.
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