Extended frivolity in Florida v. HHS:
JUSTICE SCALIA: Mr. Clement, the Chief has said I can ask this.
CHIEF JUSTICE ROBERTS: He doesn’t always check first.
JUSTICE SCALIA: As I recall your — your theory, it is that to determine whether something is coercive, you look to only one side, how much you’re threatened with losing or offered to receive. And the other side doesn’t matter.
I don’t think that’s realistic. I mean, I think, you know, the — the old Jack Benny thing, Your Money Or Your Life, and, you know, he says “I’m thinking, I’m thinking.” It’s — it’s funny, because it’s no choice. You know? Your life? Again, it’s just money. It’s an easy choice. No coercion, right? I mean — right?
Now whereas, if — if the choice were your life or your wife’s, that’s a lot harder.
Now, is it — is it coercive in both situations?
MR. CLEMENT: Well, yes. It is.
JUSTICE SCALIA: Really?
MR. CLEMENT: I would say that.
JUSTICE SCALIA: It’s a tough choice. And — and -JUSTICE
KENNEDY: I thought you were going to say “this is your money and your life.”
MR. CLEMENT: And well — it is. But I mean — I might have missed something, but both of those seem to be coercion.
JUSTICE SCALIA: No, no, no. To say — to
say you’re — when you say you’re coerced, it means you’ve been — you’ve been given an offer you can’t refuse. Okay? You can’t refuse your money or your
But your life or your wife’s, I could refuse that
He’s not going home
CHIEF JUSTICE ROBERTS: Let’s leave the wife out of this -JUSTICE
SCALIA: I’m talking about my life. I think — take mine, you know?
MR. CLEMENT: I wouldn’t do that either, Judge.
JUSTICE SCALIA: I won’t use that as an example.
Forget about it.
CHIEF JUSTICE ROBERTS: That’s enough frivolity for a while.