The Paul Clement Court

Photo: Peter Yang

A little before noon on March 23, 2010, President Obama sat at a desk in the East Room of the White House, where—surrounded by Joe Biden, Nancy Pelosi, and Ted Kennedy’s widow, among others—he signed the Patient Protection and Affordable Care Act into law. It was, as Biden memorably told Obama, “a big fucking deal.” Seven minutes later, at the U.S. Courthouse in Pensacola, Florida, thirteen state attorneys general—all but one of them Republicans—filed a lawsuit seeking to overturn Obama­care. It was, as one legal expert told the Pensacola News Journal in the next day’s paper, “a political lawsuit [likely to] be dismissed.” In fact, most papers on March 24 barely reported on the suit’s filing; the New York Times devoted just one sentence to it.

Two years later, that lawsuit—which now includes 26 states, the National Federation of Independent Businesses, and two small-business owners as plaintiffs—sits before the Supreme Court. Next Monday, the Court will begin hearing an extraordinary five and a half hours of oral arguments, held over three days, in The United States Department of Health and Human Services, et al. v. The State of Florida, et al. It is now seen as quite probably the defining case of John Roberts’s expected decades-long tenure as chief justice.

The man most responsible for this change of fate is Paul Clement, a former solicitor general under George W. Bush and the Supreme Court counsel for the state attorneys general. Tea-party politicians, including some of the lawsuit’s plaintiffs, routinely speak of the new health-care law in apocalyptic terms. (“Obama­care is, in fact, the death knell for freedom,” Rick Santorum told an audience in Alabama this month.) But the arguments against Obama­care that Clement makes in his elegantly written brief are substantially less vitriolic. They hinge on the claim that the Commerce Clause in the Constitution, which allows Congress to regulate certain activities, does not allow it to compel commerce in order to regulate it—in this case, by requiring all Americans to purchase health insurance. In political and economic terms, it’s obvious why the individual mandate was built into the health-care act: If insurance agencies are to be required to cover every American, they will need co-payments from healthy customers to subsidize payouts to unhealthy ones. To the supporters of the new law, being forced to buy health care is a low-grade inconvenience at worst and the only way to make the market function. Clement doesn’t necessarily disagree; he simply contests that such a mandatory “subsidy” to the insurance industry is constitutional. If Congress can force Americans to buy health care, he argues, what would stop it from forcing us to purchase, say, American-made cars?

There are two ways to assess a Supreme Court argument. One is to view it as an act of persuasion. You can read Clement’s brief primarily as a letter to Justice Anthony Kennedy, who’ll likely be the deciding vote if the Court overturns Obama­care. Clement quotes Kennedy’s previous opinions throughout his brief, and he leans on broad themes rather than legalistic detail, which is a style that has worked to good effect on the justice in past cases. The other, more cynical way to view a Supreme Court argument is as an act of manipulation—to provide the justices with a plausible rationale for reaching a decision they’re already predisposed to make. If you believe that the Court’s conservative majority is itching to strike down Obamacare, then the task is to launder this decision of partisan motivation. And so Clement argues that there are, in fact, other ways to fix America’s health-care system without an individual mandate; it’s just that Congress chose not to avail itself of those means because they were politically unpopular.

Most legal experts believe that though Clement is facing long odds, they’ve shortened considerably. “Paul truly is the best lawyer of his generation, and if he can’t win the case, no one can,” says Neal Katyal, the former acting solicitor general under Obama. As the Supreme Court lawyer Tom Goldstein puts it, “Paul has turned the health-care fight from kind of a conservative dream that’s untied to reality into a very serious threat to undo the president’s signature accomplishment.” This alone would be a landmark achievement—and, for most lawyers, would have required their complete attention. But health care is just one of seven cases that Clement will be arguing in front of the Supreme Court this term, a caseload previously unheard of for a private attorney. In fact, since leaving the position of solicitor general under Bush, he has become, in the Obama age, a sort of anti–solicitor general—the go-to lawyer for some of the Republican Party’s most significant, and polarizing, legal causes.

In January, he argued before the Court, on behalf of Rick Perry, against a Texas congressional-redistricting plan that had been crafted by a federal-district court to protect minority voters. Next month, he’ll defend Arizona’s restrictive immigration law. And then there are Clement’s cases, currently being argued in federal appeals courts, that appear destined to be decided by the Nine—including a defense, on behalf of John Boehner and the Republican House majority, of the constitutionality of the Defense of Marriage Act, and a lawsuit, on behalf of South Carolina, against the Obama administration for blocking the state’s voter-I.D. laws.

“I think a lot of it is just an accident of timing,” Clement says. But a lot of it isn’t. Clement’s career is cresting just as the momentous legal crusades of a radicalized Republican Party are reaching the appellate level. His ability to strip the politics out of a contentious argument, the goodwill he engenders from Democrats, and his chumminess with the justices—these are all qualities that would appear to be anachronistic in contemporary, hyperpartisan Washington. But the case of Paul Clement suggests that, at least in one corner of the capital, they are very much in demand.

Clement disputes this political interpretation. “Look, I get it, I hang out in this town, I understand how people are looking at this case.” We are talking about Obamacare one recent afternoon in his Washington, D.C., law office. “But if you really get down to the legal issue that’s at the heart of it, it’s not really a partisan issue.” Clement insists that his involvement in the case is simply a judicial and intellectual endeavor. “My job is to focus on the legal issues, and I think the legal issues here are fascinating. It’s constitutional law in the finest sense,” he says. “I think that’s part of what the Court tries to bring to these cases—to look at what the constitutional principle is and to tune out the politics of the day.” When I ask Clement if he’s comfortable serving, in effect, as the lawyer for the tea party, he demurs: “It’s not something I would identify with.”

At the age of 45, Clement, who has thinning brown hair and the faintest trace of a midwestern accent left over from his Wisconsin childhood, is already in the upper echelon of the Supreme Court bar. It’s an elite group of lawyers who, much like the justices they routinely argue cases before, conceive of themselves as being Olympian in their detachment from politics. Almost all of them graduated from Harvard or Yale or Stanford law school; clerked for a Supreme Court justice; or worked in the solicitor general’s office. (In Clement’s case, he did all three.) Now, in their private practices, they pride themselves on handling only serious cases brought by serious people in a serious manner; even if their client doesn’t prevail—or, worse, turns out to be on the wrong side of history—that stigma doesn’t fall on the lawyer. John W. Davis, who argued the losing side in Brown v. Board of Education, is still held up as an exemplary Supreme Court advocate.

Nevertheless, despite these lawyers’ contention that they aren’t political animals, they are, of course—and their extrajudicial activities often reflect as much. Ted Olson, the man Clement has supplanted as the top conservative Supreme Court lawyer, was an outspoken critic of Bill Clinton, served on the board of directors of The American Spectator, and helped found the Federalist Society. His legal cases were always assumed to reflect his ideological convictions. (Even now that he is seeking to overturn Prop 8, Olson’s personal support for gay marriage is a major story line in the legal fight.) The unusual thing about Clement is that, while he’s undoubtedly a conservative and a Republican, he has managed to avoid this fate. His persona is rarely conflated with the case he’s arguing.

Clement does not possess the outward trappings of a Washington power player. Although he wears dark suits to his court appearances, he favors khakis and oxfords in his office, to which he often commutes from his home in Virginia by bicycle. (Attention, D.C. drivers: Clement’s the guy in the bright-yellow bike helmet with a Green Bay Packers logo.) When he’s invited to speak at out-of-town legal conferences, he typically takes his wife and three boys; after he’s given his presentation, rather than work the room and schmooze, he’ll join his family at a nearby amusement park. “He just doesn’t do things that upset people,” Lisa Blatt, a veteran Supreme Court advocate and the head of Arnold & Porter’s appellate practice, says. “There’s no edge to him.”

Even as a law student at Harvard in the early nineties, when the school was riven by scorching ideological battles, Clement managed to stake his name in the fight without being of it. He was an outspoken conservative, but much like Barack Obama—who was one year ahead of Clement and who famously owed his election as Law Review president to a faction of conservative students who viewed him as an honest broker—Clement enjoyed a good reputation among his ideological adversaries. When he served as an editor of the Law Review the following year, the publication used its parody issue to mock the work of a murdered feminist law professor on the anniversary of her death. Clement was one of eight editors who ultimately signed a letter apologizing for the incident, and one of the few who escaped opprobrium from other students and faculty.

His rise in D.C. was swift. He clerked for the arch-conservative Judge Laurence Silberman and then Antonin Scalia; his first law-firm job was working for Ken Starr. In 2001, after John Ashcroft was tapped to be attorney general, he picked Clement to serve under Olson as deputy solicitor general. By Bush’s second term, Clement had succeeded Olson in the top job.

A solicitor general is charged with defending the actions of the federal government, and this meant that Clement handled some of the Bush administration’s biggest, and most controversial, cases—none more so than those related to the war on terrorism. But unlike so many other Bush-administration lawyers, Clement’s reputation wasn’t diminished by the experience. Quite the contrary. Clement, the Brookings Institution’s Benjamin Wittes says, “was one of a very small number of senior lawyers in the Bush administration who worked on nearly all of the tough counterterrorism issues and came through with their reputations enhanced.” This partly owed to his behind-the-scenes maneuvers. According to former Bush-administration officials, Clement tried (albeit without much success) to get lawyers from the White House and the vice-president’s office, such as Alberto Gonzales and David Addington, to curb their expansive claims about detention and interrogation polices related to terrorist suspects.

But Clement’s public conduct was more determinative. Despite having to vouch for those expansive claims before the Supreme Court in cases such as Hamdan v. Rumsfeld and Rumsfeld v. Padilla, he managed not to alienate his adversaries. Neal Katyal, who argued against Clement (and on behalf of Guantánamo detainees) in Hamdan v. Rumsfeld, recalls Clement treating him with respect inside and outside the courtroom. “He was an absolute prince,” Katyal says. At a 2007 dinner for the Seventh Circuit Court of Appeals, Justice John Paul Stevens hailed Clement as one of the best solicitors general he’d heard argue—a remarkable bit of praise considering that Stevens was the leader of the Court’s liberal wing.

The reservoir of goodwill Clement built for himself was so deep that he survived the type of gaffe that might have ruined another attorney. During the Supreme Court oral arguments for the Padilla case in 2004, Ruth Bader Ginsburg pressed Clement on what would be a check against torture given the Bush administration’s expansive legal claims. “Suppose the executive says mild torture, we think, will help get this information,” Ginsburg asked Clement. “It’s not a soldier who does something against the Code of Military Justice, but it’s an executive command. Some systems do that to get information.” Clement responded: “Well, our executive doesn’t.” Hours later, CBS broadcast the first of the Abu Ghraib photos. But rather than castigate Clement, the Washington legal Establishment—conservatives and liberals—rallied to his defense. “It’s a mark of the bar’s universal regard for Paul that nobody suggested that he lied to the Supreme Court,” Wittes recalls. “Rather, everyone said, ‘I can’t believe the administration let him say that.’ The whole understanding was that he had been ill-used.”

When Clement left government toward the end of Bush’s second term, The Wall Street Journal deemed him “the LeBron James of law-firm recruiting.” The Atlanta megafirm King & Spalding ultimately scooped him up to head its appellate practice in Washington, for a reported price tag of $5 million a year. He quickly proved his worth as a rainmaker, bringing in big-money clients like the NFL. He also continued with his politically charged work, successfully representing the NRA in the landmark 2010 Supreme Court case that struck down Chicago’s aggressive gun-control laws.

But last spring, Clement ran into his first taste of public controversy when he was retained by Boehner and the House Republicans to argue in federal court for the constitutionality of the Defense of Marriage Act—the 1996 law that defines marriage as a legal union only between a man and a woman and which Obama’s Justice Department had refused to defend. Gay-rights groups such as the Human Rights Campaign targeted King & Spalding, even taking their campaign to some of the firm’s clients. Soon, the firm was pressuring Clement to drop the case. When King & Spalding eventually withdrew from the DOMA case (stating that the representation hadn’t been properly vetted), Clement resigned from the firm and immediately decamped to Bancroft, a Washington, D.C., boutique law firm founded by Viet Dinh, a law-school classmate of Clement’s who later served with him in the Bush administration. Bancroft had no qualms about the DOMA representation. “We are blissfully free of existential angst,” Dinh says.

In his resignation letter, Clement wrote: “[A] representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters. Defending unpopular clients is what lawyers do.” And his decision was hailed in all corners of the legal Establishment (including by Attorney General Eric Holder). Still, even if his fellow lawyers understood the move, the decampment to Bancroft quickly placed Clement on liberals’ radar. Although the firm denies a conservative slant, Dinh, as the author of the Patriot Act, is one of the more ideologically branded lawyers in Washington; and of Bancroft’s eleven associates, five clerked in the chambers of the Court’s Bush-appointed justices, Roberts and Samuel Alito. Add to all this Clement’s other conservative cases, and it seems as if the man who has managed throughout his career to avoid the most inflammatory side of the Republican Party has now suddenly taken it all on his shoulders.

This may present an impediment to what is widely assumed to be Clement’s ultimate goal: a seat on the Supreme Court. To be sure, Republicans want him there. “It’s my aspiration, and expectation, that Paul will serve not only on a bench but the bench,” Ashcroft says. “He’s their great white hope,” one prominent Court watcher adds. “They’re praying Romney gets elected, Ginsburg dies, and they get Clement.” And for a while, it looked like Clement, should he be nominated by a Republican president, would face a confirmation process as smooth as the one faced by the legal heavyweight to whom he’s most frequently compared, John Roberts. But Roberts was much more careful not to take controversial cases during his years as a top Supreme Court lawyer. Clement has done the opposite. “He’s touched the third, fourth, fifth, sixth, and seventh rails of liberal-Democratic politics,” Tom Goldstein says of Clement’s involvement in the Obamacare, immigration, gay-marriage, gun-rights, and Texas-redistricting cases. “Paul is going to be easy to caricature, incorrectly, as someone with a hard-right agenda.”

It’s a caricature that Clement is already trying to combat. “It happens to be that some of my [current] big, high-profile cases have a certain skew to them, but other cases that I’ve taken in the past had the opposite skew to them,” he tells me, pointing to his recent representation of a class of inmates who successfully sued California to reduce prison overcrowding and his defense, while in the solicitor general’s office, of the McCain-Feingold campaign-finance-reform law. He refuses to reveal his personal views about gay marriage, or about any of his other politically charged cases, and insists that he is motivated solely by a lawyer’s duty. “I don’t relish having a case where a gay friend or a sick friend or somebody with a preexisting medical condition is rooting against me,” he says when pressed. “On the other hand, it’s just kind of inherent in the nature of the job.”

One way for Clement to demonstrate his agnosticism would be to represent Texas in Fisher v. University of Texas, which seeks to overturn the university’s affirmative-action policy and which the Supreme Court recently agreed to hear. It would be a natural fit, since he’s already representing the state in the redistricting dispute. Defending affirmative action would certainly reshuffle his reputation. “If Texas is smart, it’ll go for Paul,” one prominent liberal lawyer who’s friendly with Clement says, “and if Paul’s smart, he’ll pursue the case.”

But when I ask Clement if he might take the case, he says it’s doubtful. “I haven’t been asked to, put it that way,” he says. Were he to sign on, such a move could harm Clement’s standing with conservatives. After all, Maureen Mahoney, a Republican lawyer who served as deputy solicitor general under George H.W. Bush, was once considered by Republicans a top candidate for a Supreme Court appointment. But then she represented the University of Michigan in its affirmative-action case, and that was the end of her Supreme Court hopes.

It’s the last day of February, and Clement is standing in the well of the Supreme Court, peering up through his glasses at the nine black-robed justices seated behind a high bench. On this morning, the Court is hearing Armour v. City of Indianapolis; Clement is representing Indianapolis in an equal-protection case brought by a group of its residents who are angry that, while some of their fellow Hoosiers had their sewer taxes forgiven, theirs weren’t. Even for seasoned attorneys, and even with unsexy cases like this one, the Supreme Court is an intimidating atmosphere, but Clement betrays no nerves. It’s his 57th oral argument before the Court. When Justice Samuel Alito interrupts Clement less than 30 seconds into his argument with a question about whether, by forgiving some people’s taxes but not everyone’s, the city was simply choosing the “more politically acceptable” path, Clement has a ready answer. “Well, Justice Alito,” he says, “sometimes things that make policy sense that the public likes also make good-government sense.”

Clement benefits greatly from his personal ease in front of the Court. As a former solicitor general—a position that’s often referred to as the “tenth justice”—he is viewed by the justices as, if not a peer, then at least as someone who breathes the same air as they do. They joke with him during arguments (including over the huge paycheck he received at King & Spalding). They hobnob at the same legal conferences, as Stephen Breyer did with Clement a couple of summers ago in Paris. They even see him socially: Not long before Elena Kagan was appointed to the bench, she went with Clement to a Green Day concert. More controversially, Bancroft co-sponsored a Federalist Society dinner that was attended by Scalia and Clarence Thomas on the same day the justices met to decide whether to hear the health-care case.

At the bar, oftentimes Clement doesn’t so much argue as banter. For much of the Supreme Court’s history, the most effective advocates were dramatic orators like Daniel Webster and Thurgood Marshall. Today, with so many questions being hurled at them from the bench, lawyers have little time for speechifying. “It’s argument by interruption,” former solicitor general Seth Waxman says, “and on balance, that’s a good thing.” The best attorneys are those who can strike a balance between formality and informality, knowledge and modesty, preparation and fluidity. They must be a know-it-all, able to answer any query from a justice, without actually behaving like one—lest they upstage their interlocutors.

Clement delivers his arguments without notes, recalling specific page numbers in the appendices of his briefs from memory. He’s a firm believer in moot courts, and typically holds two before an oral argument, to anticipate any question and respond quickly. “They talk about a quarterback having a sort of clock in their head where if they hold the ball too long they’re going to get sacked,” he says. “When you’re thinking about an answer to a question and you have two answers, one of which is the Platonic form of the great answer but it takes you a minute and a half to get it out, and it’s also something where if you don’t get out the whole thing, it doesn’t really help, and you compare that to an answer that’s 70 percent as good but you can basically get it out in twelve seconds or twenty seconds, I think you’d prefer the second of those two.”

Sometimes it’s hard to tell in the moment how effective his conversational approach can be. In December, the Court heard PPL Montana, LLC v. Montana, a land dispute between a power company and the state that hinged on the question of whether three rivers are navigable. Clement, representing the power company, argued that a river couldn’t be deemed navigable if a boat has to be carried overland for any segment of its journey. Chief Justice Roberts challenged that reasoning, likening it to someone who questions his assertion that he flew from Washington, D.C., to Tokyo by claiming, “No, you didn’t, you flew to San Francisco, then you walked however many yards from one gate to another, and then you flew to Tokyo.” Clement’s rejoinder was instant. “I am not sure I would have the same instinct about common parlance if you had to go from JFK to La Guardia in a cab,” he told Roberts. “And I’m even less sure that you would have the same notion if you had to drive from San Francisco to L.A. to switch planes.” Clement won the case 9-0.

Clement knows that outcome is unlikely in most cases—especially Obama­care. “Ideally, you’d like to get nine,” he says, “but, look, you’re trying to get five for your client.” Part of what’s exciting to him about the health-care case is that the usual predictive analysis is less applicable. “There are certain cases where you may feel like the justices pretty much already know how they’re going to vote,” he says. “This case, especially because Congress’s action is so unprecedented, is one where the justices are not necessarily going to have a preconceived notion.”

Although many people believe Kennedy would be the deciding vote against Obama­care, Clement insists he’s not tailoring his arguments solely to him. “It’s always a mistake to focus on one,” he says. “This would be a much easier way to make a living if what appealed to the fifth justice was always just the same thing that appealed to the first four, just a little bit less. But it doesn’t work that way. Sometimes you can have a theory that’s going to appeal to three justices but will be completely unappealing to another couple of justices. So if you’re trying to get to five, you have to maybe argue one thing, but you have to have a fallback position that appeals to other justices, and you can’t abandon one for the sake of the other.”

Perhaps more important than a particular line of argument, what Clement brings to the health-care case is membership in the club. Back at the Court during Armour v. Indianapolis, the five conservative justices Clement is counting on to win the health-care case are, ironically, the ones most hostile to his argument on this morning. They repeatedly interrupt him with skeptical, even hostile, questions. After he tells the bench that they will look “in vain” for any statutory language that requires his client to collect the same taxes from everyone, Chief Justice Roberts takes him up on the challenge. “You said I would search in vain,” he scolds Clement as he reads aloud from 15 (b) (3) of the statute. Clement pushes back, but gently—as if he already knows he’s going to be on the losing side.

And when the oral argument is over, he does not linger. Instead, he quickly exits the Court and heads back to his office for a prep session. Clement has now argued four cases before the Court this term. He has three more to go—at least one of which, although he’s loath to admit it, could change the course of American politics.

One Busy Lawyer
Just a few of Paul Clement’s current cases

Windsor v. United States:Defending DOMA, since the Justice Department won’t.
Arizona v. United States:Defending Arizona’s immigration law, one of the most restrictive in the nation.
Rick Perry v. Shannon Perez:Defending Rick Perry’s preferred redistricting plan in Texas.
The United States Department of Health and Human Services v. The State of Florida:Challenging the constitutionality of Obamacare.
South Carolina v. United States:Defending South Carolina’s voter-I.D. law opposed by the Justice Department.

The Paul Clement Court