Yesterday's Supreme Court oral arguments over Obamacare's individual mandate marked the biggest day for the biggest case of the century. But even early on, the left knew the news wasn't good. Reporters streamed out of the courtroom shaking their heads: no fifth vote in sight, tough questions from Justices Kennedy and Breyer, and a masterful performance from Paul Clement, who came with the best brief and spoke beautifully against the mandate, no notes needed.
Then, with the release of the day's transcript and audio recording, all attention turned to the government's advocate, Donald Verrilli: his nervous coughs, his sips of water, his "ums" and "uhs," his word and phrase repetitions. To be fair, most observers haven't listened to or read a SCOTUS transcript before, and have little basis for comparison. And the White House today vehemently defended Verrilli's performance:
[He] ably and skillfully represented the United States before the Supreme Court yesterday, and we have every confidence that he will continue to do so.
Today, Verrilli and Clement will square off over the mandate's "severability" from the broader Affordable Care Act: that is, whether the law can survive without its most important provision. But how fair are the Verrilli critiques?
Videos like this — all of Verrilli's verbal slip-ups, compiled by BuzzFeed — are painful to watch:
But even beyond delivery, the solicitor general seemed to fail on content. He fell back on political talking points during questioning, sometimes frustrating the justices. Perhaps the strongest indicator of the broader failure of Verrilli's oral argument was that, at several points, the court's liberal justices had to step in to argue his case for him. From the transcript:
Justice Ginsburg: "General Verrilli ... tell me if I'm wrong about this, but I thought a major, major point of your argument was that ... "
Ginsburg again: "Mr. Verrilli, I thought that your main point is that, unlike food or any other market ... "
Justice Breyer: "Justice Kennedy asked, can you, under the Commerce Clause, Congress create commerce where previously none existed. Well, yes, I thought the answer to that was, since McCulloch versus Maryland ... "
Breyer again: "Your question is whether or not there are any limits on the Commerce Clause. Can you identify for us some limits on the Commerce Clause?"
As Jason Zengerle put it, it's likely that we overstate the importance of the oral arguments when psychoanalyzing the Court. In some sense, no matter the lawyer in front of them, the justices are circuitously arguing with one another — the liberals have their turn against Clement, the conservatives, against Verrilli. But regardless, when even Mother Jones is accusing the Obama administration's lawyer of making "The Worst Supreme Court Argument of All Time," we know where some of the blame is going to fall if the court rules against the mandate.