Justice Antonin Scalia continued a recent media push against the Supreme Court decision on the 2010 health care law Sunday.
In an appearance on “Fox News Sunday,” the Reagan appointee repeated his argument that the health insurance mandate in the law is unconstitutional, saying the majority opinion that it was a tax is not backed up.
“You don’t interpret a penalty to be a pig. It can’t be a pig,” Scalia said. “What my dissent said ... was simply that there is no way to regard this penalty as a tax. It simply does not bear that meaning. In order to save the constitutionality, you cannot give the text a meaning it will not bear.”
Describing it only as “unusual,” Scalia declined to offer criticism of President Barack Obama’s remarks in April in which he stated that the court would be displaying “judicial activism” if it strikes down the health care law. He said it had no effect on his decision on the case.
“What can he do to me, or to any of us?” Scalia said. “We have life tenures, and we have it precisely so we won’t be influenced by politics, by threats from anybody.”
Scalia said the court is not political at all but that 5-4 decisions should be no surprise.
“Republicans have been looking for originalists and textualists and restrained judges for 50 years, and Democrats have been looking for the opposite, for people who believe in Roe v. Wade,” he said.
In a separate interview on “Face the Nation,” retired Supreme Court Justice Sandra Day O’Connor said she was not surprised by the breakdown of the decision either.
“Well, it tells that they don't, they don't always agree and that's what it should be. For goodness sakes, that's why you have a court,” she said. “And you have nine members so it's uneven, you're not going to split evenly. If they all vote, it can be decided 5 to 4.”
She added that she did not think the close decision was a sign that the court is trending “one way or the other,” noting that it was “a very sensitive case with political connotations.”
O’Connor declined to say how she would have voted, noting that she did not read the briefs or hear the oral arguments.
Also appointed by Reagan, O’Connor retired in 2006 and was replaced by Justice Samuel Alito, who voted against the health care law.
In his interview, Scalia said he has no immediate retirement plans and declined to say whether he would wait for a Republican president to retire, but he gave one hint.
“Of course I would not like to be replaced by someone who immediately sets about undoing everything that I’ve tried to do for 25, 26 years."