I’m with David French on this:
While we still don’t know the outcome of the Obamacare case, that hasn’t stopped some on the left from piling on Solicitor General Donald Verrilli for allegedly “choking” during oral arguments. While I haven’t argued in front of the Supreme Court, I’ve had more than my share of state and federal appellate arguments, and these armchair quarterbacks are overlooking a few factors.
First, it’s tough for any advocate to compare well to Paul Clement. Virtually any fair-minded liberal or conservative can tell you that Clement is just about the best in the business — one of the great oral advocates of our generation. This was his Superbowl, and he delivered a performance about as “clutch” as anyone can deliver.
Second — and more importantly — it’s tough for anyone to perform brilliantly when your argument is weak on the merits.
I’ll add a few final thoughts and look forward to the opinion in a few months.
First, the desire to impugn Verrilli stems, maybe understandably, from the frustration on the left ( How can we be losing this?!) and the lack of understanding as to how courts make their decisions. Many eloquent advocates lose a lot of Supreme Court cases because a good advocate can make a marginal case better but rarely can he save one with a central defect. At this level of judicial advocacy it’s too hard to hide the ball.
Second, all the “novel” tests that Obamacare defenders offer to provide a limiting principle aren’t so novel after all. They nearly all depend on one of a few logical errors: confusing the health-care insurance market and health-care market; making a dubious factual distinction that only the health-care market (or even less convincingly, the health-care insurance market) concerns a “must-have” item ( What about shelter? Clothing? Food?); or falsely asserting that another method of accomplishing the same ends (e.g. tax at the point of usage) blesses the method the government in fact employed (the individual mandate). Believe me, the left (meaning not just the government but collective liberal legal scholars) have had months and months to figure out a limiting principle that had constitutional significance and couldn’t do it. In the months leading up to the oral argument I never heard a persuasive one, even from liberal lions such as Larry Tribe.
Third, as the Post editorial board writes, “there’s a kind of cynicism, or at least intellectual laziness, in asserting that this is an easy or obvious call — that no justice could possibly strike down the mandate out of honest, reasoned conviction. Solicitor General Donald B. Verrilli Jr. had his hands full defending the mandate, not because he’s a bad lawyer, but because it’s not an easy question.”
Hearing this sort of reaction from the left, a conservative legal guru e-mailed me, “Of course, the fact that the [votes of] four liberal justices were never in doubt is not partisan. The fact that one of them actually worked in the Justice Department when this matter began, assigned the case to her principal deputy, cheered the passage of the law in an email, substantially participated in another case raising the law, and may have attended meetings where the law was discussed, even if, arguendo, not sufficient to force recusal, of course doesn’t suggest any partisanship.” Well, I, for one, find myself glad Justice Elena Kagan participated; no one can claimed to have been short-handed.
Fourth, the reason we can sometimes predict these things (although the percentage of 5-4 decisions and predictable votes is somewhat overblown) is because presidents have gotten very good at choosing justices who embody their philosophy of judging. It’s hard to write on the Supreme Court without defaulting to the terms “liberal” and “conservative,” and I regret that this terminology conveys a political disposition. In fact, “liberal” jurists view the Constitution more like a hint or a strong suggestion, but not a limitation on creation of new rights (isn’t sexual orientation close enough to the ones mentioned in the Fourteenth Amendment?) or a bar to exercise new powers to meet “modern” conditions. The more important the policy objective, the more they tend to strain to find a hook on which to preserve the objective, although the Congress has no “if it is really, really important, go ahead” provision. “Conservative” judges think the Constitution was written with the intent of constraining government by devices such as federalism, enumerated rights, specific prohibitions and, of course, specified rights, including those found in the amendments. If they find a restraint, by gosh, they’re going to enforce it; and if not, they’re unwilling to wave vaguely at the text and say, “It’s in there somewhere.” Those are two very different ways of looking at the Constitution, so it is not surprising that the two camps often reach different results.
And finally, conservatives had some fun at Justice Stephen Breyer’s expense this week with his less-than-dazzling display of judicial reasoning. It is hard to tell from the transcripts if he was perhaps being humorous in some of these instances. But before they get too cocky they should re-read the questioning of Justice Sonia Sotomayor and at points Justice Ruth Bader Ginsburg. They are no slouches and know their way around the briefs and the arguments. They put both sides through their paces.
Although I remain opposed to cameras in the Supreme Court (I worry less about the justices than grandstanding counsel), the near immediate provision of audio and transcripts helped ensure a national seminar on the Constitution. In doing so, the court fulfilled its responsibility to further popular understanding of and respect for the rule of law. It should consider rapid response of this type for other highly watched cases coming up on the Arizona immigration law and on racial quotas in higher education.