Solicitor General Donald Verrilli Jr. on Tuesday began the most important oral argument of his career as he does in most cases, with a soft-spoken, almost halting manner. He reached for a gulp of water to soothe a scratchy throat.
Fifty-six minutes later, after being hit with hostile questions about the constitutionality of the Affordable Care act, Verrilli ended his presentation pretty much the same way, quietly asking to reserve the balance of his time.
It was not until his rebuttal an hour later that Verrilli gave a full-throated defense of the law, slamming his opponents’ “utterly unrealistic” alternative for financing the nation’s health care system without the individual mandate at issue in the case. “Congress confronted a grave problem when it enacted the Affordable Care Act: the 40 million Americans who can’t get health insurance and suffer often very terrible consequences,’ Verrilli said forcefully.
But by that point, some commentators thought that Verrilli’s sudden passion was too late, and that the advantage had gone to his adversaries Paul Clement and Michael Carvin, whose emphatic, unhesitating style made it seem that victory was easily within their reach.
CNN commentator Jeffrey Toobin, author of a bestselling book on the Court, went outside to pronounce on the air that the argument was a “train wreck” for the government. Toobin asserted that Verrilli had done a “simply awful” job and was not “ready with good answers.”
Carrie Severino, a former Clarence Thomas clerk, counsel to the Judicial Crisis Network and an ardent opponent of the Affordable Care Act, also spoke of Verrilli’s “rough start” and “stumbling” presentation. Other critics took Verrilli to task for failing to give a crisp answer to the request by conservative justices for a “limiting principle” that would reassure them that Verrilli was not asking for unlimited federal power to cure all ills. In addition, some said Verrilli should have repeatedly focused attention on Court precedents like Gonzales v. Raich in which the Court gave an expansive reading to the commerce power of Congress.
But just as quickly, supporters of the law came to Verrilli’s defense, asserting that the contrasting styles of the lawyers who argued Tuesday should not obscure the fact that the SG had made all the points he had intended to make in defense of the law as a constitutional approach to solving a national economic problem. “Don is little more formal, more understated, but at the end of the day, he did an admirable job,” said Douglas Kendall of the Constitutional Accountability Center, which supports the law. Kendall also said press coverage of the arguments has overlooked the fact that Chief Justice John Roberts Jr. and Anthony Kennedy questioned Clement and Carvin skeptically, making them possible votes for the government’s position.
Thomas Goldstein of Goldstein & Russell, who also watched the arguments, said the “optics” of an argument can be affected by factors entirely outside the control of the lawyers. The Court’s conservative justices are sharper questioners, for example, making their target – in this case Verrilli – seem like he is always on the defensive. “It’s easy for Paul to look brilliant when he has them on his side,” said Goldstein, a veteran advocate before the Court.
By contrast, Goldstein said, the liberal justices don’t make their targets sweat even when they are asking aggressive questions. “Justice Sotomayor steps in – and steps on – her colleagues, and Justice Breyer will ask a question that lasts three minutes,” blunting their effectiveness, said Goldstein. He added that Justice Elena Kagan is probably the most effective questioner on the Court’s liberal side.
Mayer Brown’s Andrew Pincus, another veteran advocate who was in the audience, said the government had “the harder side of the stick” in Tuesday’s argument. “The justices asked probing questions, which is what you would expect of an argument of this moment and magnitude … I think Don did a good job of explaining why this market is unique.”
Then, there is the Clement factor. With his conversational style, confident but usually not cocky, Clement was at the top of his game on Tuesday, handling questions with ease. “When Paul does as good a job as he did,” said Goldstein, “it’s hard for anyone else to shine.”
Tony Mauro can be contacted at firstname.lastname@example.org.