Wednesday, March 28, 2012


A lot of people who covered yesterday's Supreme Court oral arguments came away with the impression that Solicitor General Donald Verrilli did a godawful job of defending the Obama health care law -- but is it possible that he has a good excuse for that?

Adam Serwer:

... [Verrilli's] defense of Obamacare on Tuesday may go down as one of the most spectacular flameouts in the history of the court....

"What is left?" Justice Antonin Scalia demanded of Verrilli, "if the government can do this, what can it not do?" ...

The months leading up to the arguments made it clear that the government would face this obvious question. The law's defenders knew that they had to find a simple way of answering it so that its argument didn't leave the federal government with unlimited power.... Verrilli was unable to do so concisely, leaving the Democratic appointees on the court to throw him life lines, all of which a flailing Verrilli failed to grasp....

Yes, but didn't every plugged-in legal and political insider tell us that this part of the case would be a slam-dunk for the administration?

In the orgy of panel discussions, interviews and feature articles previewing this week's arguments, law professors, Supreme Court litigators and journalists confidently predicted that the justices would uphold the individual mandate as a logical extension of the federal government's well-established ability to regulate the health insurance market.

Harvard law professor Charles Fried, a solicitor general himself in the Reagan era, famously promised a couple of years ago to eat his Kangaroo skin hat if the Supreme Court struck down the law.

All the insiders tell us that the Supreme Court, whatever its members' ideology, is an institution that tries to be fair, that respects precedent, and that is highly aware of maintaining its reputation for impartiality. For the insiders, all that added up to a Court that simply had to uphold the mandate.

Meanwhile, we non-insiders aren't fooled -- a recent Bloomberg poll found that 75% of Americans believe the Court's health care decision will be based on politics, not the legal merits.

But if Verrilli shared the insider view, why should we be surprised that he wasn't prepared for total war? Didn't all the smart people say this would be a piece of cake?


BH said...

Agreed that Verrilli may well have paid too much attention to Fried et al. Which is equivalent to saying that Verrilli ignored a fundamental rule (of mine, anyway) of argument, oral or written: the only sensible assumption is that every essential point you need to make will be vociferously contested, so you prepare accordingly. If you're not willing & able to do that, then you aren't the lawyer for the job.

I'm not sure I have universally high regard for Solicitors General as a breed. E.g., I noted that Clinton's SG (can't recall the name just now) was quoted yesterday to the effect that Kennedy & Roberts would vote to uphold because (to paraphrase) if OCare is struck down, that would bring in the specter of single-payer. Well, Mr. ex-SG, au contraire: if Ocare is struck down, it's far more likely that it'll be replaced by the status quo ante, certainly in the short term - single-payer's not even a remote possibility now, if it ever was. Even a damfool Ivy League lawyer ought to be able to see that.

Cereal said...

Forget about whether they listened to insider punditry.

In thus kind of case, the one question you know Scalia (or another of the conservative justices) will ask is "so how far does this go? Where is the line? If the government can do this, what can't it do?"

A first year law student mooting the argument will prepare for this question first, last and many times in between. You have to have a good answer to give them or you lose.

Not having one down pat is beyond incompetence.

PurpleGirl said...

I'm not a lawyer but I've worked with them and took part in the planning of a number of cases. Verrilli is the lead attorney to speak before the court, but I don't think Verrilli made all the decisions about strategy and arguements by himself. He had a team working with him, with whom he discussed as many aspects of the case as they could think of and all the ins and outs. They also must have discussed different approaches that he should take in oral argument, besides what was put into printed briefs. (This is not a defense of him but my observation of how attorneys work.)

Dark Avenger said...

"It is said that if you know your enemies and know yourself, you will not be imperiled in a hundred battles; if you do not know your enemies but do know yourself, you will win one and lose one; if you do not know your enemies nor yourself, you will be imperiled in every single battle."

Sun Tzu

Steve M. said...

For a long time, the problem with the Obama administration seemed to be that they didn't even know their enemies were enemies. Verrilli may still be like that (or may have been until yesterday).

Dark Avenger said...

I don't think they know themselves, being conciliatory and avoiding conflict isn't a political position, it's ass-covering by another name.