Whether he wins or loses, Bancroft partner Paul Clement’s three oral arguments in the landmark health care cases have bolstered his reputation as a master of Supreme Court advocacy.
But Viet Dinh, founder of the Bancroft firm, wants you to know that Clement did not do it all alone. “Everyone has said everything about everybody — except Erin Murphy,” said Dinh.
That would be Erin Murphy, the Bancroft associate who was second-chair for Clement’s arguments last week and is the only other lawyer whose name also appears with Clement’s on all seven merits briefs he filed in the health care cases. In an interview late last week, Murphy shed some light on the behind-the-scenes preparations and strategy for the arguments.
“It was just an amazing experience,” said Murphy, 31. “I’ve been living with this case for a year.” Murphy assisted Clement at the appeals court stage as well, and was just barely able to participate at the Supreme Court level. That’s because she clerked for Chief Justice John Roberts Jr. in the 2008-2009 term, and the two-year ban on former clerks doing Supreme Court work expired last August.
Murphy’s career has been entwined with both Dinh and Clement for years. At Georgetown University Law Center, where Dinh teaches, she was his research assistant, and then his first employee at Bancroft after he created the firm in 2003. She clerked for Judge Diane Sykes on the 7th Circuit and had a prestigious Bristow fellowship in the solicitor general’s office when Clement was SG. After clerking for Roberts, she joined Clement at King & Spalding. So when Clement joined Bancroft last year after a highly publicized dispute with King & Spalding, Murphy was not far behind in returning to Bancroft. “It was like a homecoming,” she said.
Though Clement’s arrival has led Bancroft to add several attorneys — they now total 13 — Murphy said the health care cases were handled in small-firm style. “There wasn’t any war room or anything like that,” said Murphy. “Paul is very self-sufficient.”
So what was it like working with Clement in the pressure cooker environment leading up to the Supreme Court arguments? “Paul is obviously a brilliant guy, and very quick in his thinking,” said Murphy. In the early stages of each brief, they would talk at length. “I like to get a sense of what he is thinking, what is important in his mind.” She then wrote first drafts that Clement reviewed, kicked back and discussed some more. “He definitely lets me have a hands-on role,” she said, but the final brief is “Paul’s product.”
Clement called Murphy “a stellar advocate on every level,” and praised her “invaluable” work on the health care cases. “She worked on every brief we filed in the Supreme Court and on our Eleventh Circuit brief as well,” said Clement. “Every one of those briefs bears her name and her mark.”
The signature features of a Clement brief, Murphy said, are a thematic approach and clear writing. “We like to think about a case in a big-picture way. We step back from the details and approach everything in a thematic way” so that all parts of the brief advance “what is at the heart of the case.”
Before law school Murphy, who grew up in Naperville, Illinois, trained at Northwestern University’s Medill School of Journalism to be a reporter. She interned for Newsday in New York. Journalism school helped her “write concisely,” Murphy said. “Lawyers are usually not known for brevity.”
The week before the high court arguments, Clement went through moot courts every day (except weekends) polishing his answers to anticipated questions. Asked if any questions from the bench were a surprise, Murphy said no, though she added, “Certainly justices have a different way of putting things than you might anticipate.”
One example was Justice Elena Kagan’s hypothetical during the Medicaid arguments, which focused on whether the massive subsidies offered by the law to states are unduly coercive. If an employer offered a prospective employee $10 million to take a job, Kagan said, that wouldn’t be coercive, would it? Much to Kagan’s surprise, Clement said it might be — if the money came from the employee’s own bank account.
While Clement wasn’t expecting that precise scenario, Murphy said he had anticipated a question like it, and knew his answer should incorporate “the full picture of where the money was coming from.”
During the other argument on Wednesday on the severability issue, Clement offered a surprising illustration to support his argument that the entire health care law should be struck down if the core individual mandate provision is found unconstitutional. He invoked the specter of Buckley v. Valeo, the 1976 campaign finance case in which the Court struck down the congressionally enacted limit on campaign expenditures, but upheld the limit on contributions. The Court has struggled with the consequences of that “half-a-loaf” approach ever since, Clement pointed out.
The Buckley allusion “was not in the briefs,” Murphy said, but Clement had saved it to use in his argument. “The point of the reference was not to call into question the substance of Buckley,” Murphy said, but rather to suggest that “it hadn’t exactly worked out perfectly. We thought it might resonate.”
Based on her experiences, does Murphy want to argue before the Supreme Court herself someday? “I certainly would love to,” she said without hesitation. “It’s definitely an aspiration of mine.”
Tony Mauro can be contacted at email@example.com.