Scalia's defenders say the criticism is misplaced. They say the justice was doing something much more familiar and common, attacking the majority opinion by Justice Anthony Kennedy. "He really wasn't criticizing the Obama administration's position. He was just using it as a timely example of why he thought his position was the better one in the Arizona case," said Brian Fitzpatrick, a Vanderbilt University law professor who once served as a law clerk to Scalia.
Separately, in defending the tough Arizona law, Scalia's written dissent refers to the laws of Southern slave states that excluded freed blacks to support the notion that states had control over immigration in the era before Congress enacted national legislation. Liberal commentators seized on that reference as a particularly bizarre twist in an otherwise angry opinion.
But Scalia's supporters say the justice is held to a different standard in the media than other justices. Ginsburg, for instance, won wide praise when she used her dissent in a sex discrimination case in 2007 to urge Congress to take action to undo the court's decision.
During the three days of health care arguments in March, Scalia spoke more than anyone else, mainly posing hostile questions to defenders of the law, according to a study of the arguments.
In an exchange with Solicitor General Donald Verrilli Jr., he left little doubt about what he thought of the eventual winning argument that the individual insurance requirement could be found constitutional under Congress' taxing powers.
"You're saying that all the discussion we had earlier about how this is one big uniform scheme and the Commerce Clause, blah, blah, blah, it really doesn't matter. This is a tax and the federal government could simply have said, without all of the rest of this legislation, could simply have said, everybody who doesn't buy health insurance at a certain age will be taxed so much money, right?" Scalia asked.
Eventually, Verrilli said, "It is justifiable under its tax power."
"OK. Extraordinary," Scalia said.
The next day, he said the court should not have to go through each and every page of the massive law to sort out what stays and what goes should the justices invalidate the requirement that people carry insurance.
"What happened to the Eighth Amendment?" Scalia asked, referring to the Constitution's ban on cruel and unusual punishment. "You really expect us to go through 2,700 pages?"
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