The media is spilling a lot of ink on the subject of Solicitor General Donald Verrilli’s uninspiring oral argument in yesterday’s Supreme Court oral argument regarding the Affordable Care Act. On the flip-side, Elie Mystal thinks Verrilli faced impossible odds and we should stop criticizing him for failing to magically transform Scalia into Obamacare’s #1 cheerleader.
After pouring over the transcript, it seems to me that Verrilli just failed to appreciate the power of simplicity. His strategy wasn’t actually all that bad, just his execution. The places where he stumbled tended to be on questions that the government has no interest in answering. The Justices pressed for a “limiting principle” to hem in the extent of the commerce clause. To do this, the conservative Justices invented a litany of laughable examples such as burial insurance or broccoli and asked whether they could be mandated under the commerce clause. The government doesn’t want to reach that question and hamstring future lawmakers, but Verrilli tried to argue the nuts and bolts of these examples with Justices who had no interest in listening. Tactically, he should have consistently stuck to “if the failure to participate in those markets represented billions in lost revenue for state governments and ever inflating burdens on other market participants then sure, but I’m not here to argue about markets that could influence interstate commerce, but markets that do conclusively influence interstate commerce.”
It’s often mocked, but Justice Potter Stewart’s famous quote from Jacobellis v. Ohio about pornography is a powerful moment in Supreme Court jurisprudence. Justice Stewart said of the line between free speech and pornography:
I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [“hard-core pornography”]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.
Health insurance is interstate commerce subject to federal regulation and Verrilli weakened his presentation by trying to dance around that. The former Solicitor General during the Reagan administration, Charles Fried, put it best “Health care is interstate commerce. Is this a regulation of it? Yes. End of story.”
At the end of the day, these arguments are not going to turn this case, but the failure to create a quotable, powerful defense of this law might. Justice Kennedy has shown more willingness to swing with popular opinion than other Justices and the strength of the popular narrative around this law is critical to swaying his opinion. Verrilli failed to provide that stirring defense and we’ve already seen the RNC turn Verrilli’s argument into an attack ad. More than any technical legal issue, the fact that this ad can be made is Verrilli’s real failure.