Scalia the activist

But Justice Sonia Sotomayor voiced a view that also seemed to be shared by Justices Stephen Breyer and Ruth Bader Ginsburg. States that have experimented with similar health care plans, she said, have adjusted those plans as problems occurred.

"Why shouldn't we let Congress do that?" she asked. "What's wrong with leaving it in the hands of the people who should be fixing this, not us?"

Ginsburg later noted that the law contains many provisions that have nothing to do with the individual mandate. "So why should we say: It's a choice between a wrecking operation, which is what you are requesting, or a salvage job?" she said to Clement. "And the more conservative approach would be salvage rather than throwing out everything."

However, Justice Antonin Scalia was skeptical of the "salvage" approach in questions to Deputy Solicitor General Edwin Kneedler, who argued that only the mandate and the guaranteed-issue and community-ratings provisions should be severed if the mandate is unconstitutional.

"Whether we strike it all down or leave some of it in place, the congressional process will never be the same," Scalia said. "One way or another, Congress is going to have to reconsider this, and why isn't it better to have them reconsider it — what should I say — in toto?"

Whose choice as to which is "better" is it Scalia? Yours or Congress? Why should Congress start out as if nothing was passed if something was in fact passed simply because you think it'd be "better" if they started from scratch?