Scalia on Individual Mandate: A Penalty 'Can't be a Pig'

Supreme Court Justice Antonin Scalia criticized the court majority’s reasoning that narrowly upheld most of the Affordable Care Act. He voted in the 5-4 minority.

In a Fox News interview broadcast on Sunday, Justice Scalia discussed the reasoning used by Chief Justice John Roberts Jr. and four liberal colleagues to find that the individual mandate, a central portion of the overhaul law, “may reasonably be characterized as a tax.”

“There is no way to regard this penalty as a tax. … In order to save the constitutionality, you cannot give the text a meaning it will not bear,” Justice Scalia said, according to a Reuters article. He added, “You don’t interpret a penalty to be a pig. It can’t be a pig.”

Justice Scalia also said that he expected to choose the timing of his retirement so that a like-minded president could name his successor.

Justice Scalia, who is conducting a book tour, also was interviewed by C-SPAN. There has been a flurry of news media attention to his recent interviews. Among the reports were these: “Scalia: Cameras in Supreme Court would ‘mis-educate’ Americans,” from Politico; “Scalia disputes talk of Supreme Court infighting,” USA Today blog; “Justice Scalia: ‘I’m Not Cantankerous,’” Wall Street Journal blog; “Supreme Court Justice Scalia Addresses Nation’s Gun Laws,” Wall Street Journal; and “Scalia Opens Door for Gun-Control Legislation, Extends Slow Burning Debate,” from Fox News.

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