Paul Clement has been receiving rave reviews for his performance during the second day of oral arguments over health-care reform before the Supreme Court. (“[T]he best argument I’ve ever heard,” SCOTUSblog Tom Goldstein raved on Twitter). But Clement’s finest moment may have come when he was completely silent.
A little more than two minutes into Solicitor General Donald Verilli’s turn at the bar, Justice Anthony Kennedy interrupted him: “Can you create commerce in order to regulate it?”
Kennedy’s query was an almost verbatim recital of Clement’s own talking point, part of the fundamental argument he has made against the individual mandate. In his brief to the Court, and later during his oral argument, he said Obama’s health-care law “represents an unprecedented effort by Congress to compel individuals to enter commerce in order to better regulate commerce.”
It’s a recasting of the original argument used by opponents of the mandate: that Congress has overstepped its constitutional authority by regulating inactivity rather than activity. As Clement explained to me a few weeks ago, “I wasn’t of the view that that was necessarily the best way to try to explain why this was unprecedented and why this was different, and that it might be more effective to kind of use the idea of basically forcing people to engage in commerce so that you can regulate the commerce.”
The fact that Kennedy — the Justice who many believe to be the swing vote in the health-care case — has apparently decided to view the case through this framework suggests just how effective Clement has been. It points to something else that Clement told me: that for all the sturm und drang surrounding these three days of oral arguments, the health-care case, like every Supreme Court case, will likely be won and lost in the briefs.
“I’m a big believer that oral argument makes a difference, but I’m also a big believer that comparably the briefs make even more of a difference,” Clement explained. “One way I think about it is, you start a case and maybe there’s a degree of skepticism that would generate 100 questions; nobody can answer 100 questions to the satisfaction of a skeptical justice in 30 minutes or whatever. But if you brief it really well and you kind of head off some of that at the pass and then you get it down to the point where even a skeptical justice only has a couple of questions, and you assume they’re really open to persuasion on those couple of questions, you’ve now kind of got it to a margin where the oral argument can make a difference.”
Seen through that lens, Clement has to be feeling pretty good about his experience at the Court earlier today. While he faced tough, bordering-on-hostile questions from the four liberal justices — most notably from Justice Steven Breyer, who seemed to be lecturing more than asking — the two justices who seem most open to persuasion by either side, Kennedy and Chief Justice John Roberts, were far tougher on Verilli. And when they did have questions for Clement, he handled them with aplomb.
For instance, when Chief Justice Roberts challenged Clement’s favorite hypothetical — that if the Court grants Congress the power to make people buy health insurance to solve the health-care crisis, then it can make people buy cars to help the auto industry — by repeating the government’s argument that, unlike the auto market, everyone is already in the health-care market, Clement made a further distinction: “[T]his statute undeniably operates in the health insurance market, and the government can’t say that everybody is in that market. The whole problem is that everybody is not in that market, and they want to make everybody get into that market.”
It was the type of clear, succinct answer that Verilli was unable to give, even to the most straightforward questions like Kennedy’s. During one particularly painful answer to a question posed by Justice Antonin Scalia about why the health-care market was different from other markets, Justice Ruth Bader Ginsburg interrupted the Solicitor General to toss him a life preserver."Mr. Verilli, I thought that your main point is that ... ", she said, going on to answer Scalia's question herself. "That is definitely a difference that distinguishes this market and justifies this as a regulation," the grateful Verilli answered.
While it’s undoubtedly premature to say that Obamacare is doomed, as some are now claiming, Tuesday’s hearing suggests that Clement has at least found a plausible path to victory. It also points to one other lesson Clement has learned in the course of arguing over 50 cases before the Court. As he told me, “I think you can take a great brief and still give your case away at oral argument.”
Clement didn’t do that today. The question is whether the government did.