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Capital New York - On Long Island, Scalia Dodges Health Care Questions, Even From Pete King

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By Reid Pillifant

Justice Antonin Scalia isn't entertaining questions about the health care law.

In Mineola this morning for a breakfast event hosted by the conservative Federalist Society, Scalia swatted away a long-winded inquiry from an attendee about whether he cared to comment on President Obama's recent remarks that the court would be engaging in "judicial activism" if the justices struck down the Affordable Care Act.

"Scalia just listened to him and then said, 'Nope,' and took the next question," said Representative Peter King, who attended the event and talked to me afterward.

After three days of combative oral arguments last week, the court was reportedly scheduled to vote on the outcome last Friday, but isn't expected to issue a formal decision until June.

As the highest-ranking elected official in attendance, King got a privileged seat next to Scalia at the head table, but he didn't manage to get any inside information about the court's deliberations.

King said he was "actually very conscious of the separation of powers," so he didn't ask Scalia any direct questions about the case, but he said that at one point he broached the subject of the media coverage of the proceedings, and the conclusions observers had drawn from each line of what amounted to a very long dialogue.

"He just sort of smiled when I said it," King said of Scalia's reaction.

For the most part, King said, the table engaged in small talk. Scalia grew up in Elmhurst, and King in Sunnyside, and another retired judge at their table had been at Georgetown with the future justice.

Scalia's address to the group was his usual stump speech about the role of the court and how best to interpret the Constitution. (Short version: Look at the text.)

"It was interesting and it was extremely intelligent, but it was pretty much a standard Scalia speech," King said.

King said he thought the president's remarks about the court, which Republicans characterized as an attack, amounted to a "political cheapshot," and said the argument that the court should defer to Congress, simply because it passed the law, didn't make much sense.

But King was reluctant to read too much into the questioning.

"I haven't practiced law in a long time, but I've followed a lot of Supreme Court cases, and to me, the questions that don't always mean that much," he said.

Like everyone else, King wasn't sure what to make of Justice Anthony Kennedy's questions, and recalled the decision in Planned Parenthood v. Casey, in which Kennedy co-authored a plurality opinion affirming parts of Roe v. Wade.

"I just think that on the merits, Kennedy may have voted to strike that down, but I think he was thinking of what the social consequences could be," King said. "So he may find some way to save the statute."

King rejected the notion, advanced at one point by Senator Chuck Schumer, that it would be a good thing for Democrats if the court struck down the law in time to make it a non-issue in the presidential election. He said it would definitely be a loss for the president to have the court undo his signature legislative achievement.

"But," he said, "I think Republicans will also have to show what our alternative is."


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