4:51 pm Mar. 27, 20121
The early reviews of Solicitor General Donald Verrilli Jr.'s oral argument in support of the Affordable Care Act before the Supreme Court this morning ranged from not good to catastrophically bad.
It's not clear now much that will matter, in terms of the court's ultimate verdict on constitutionality of the president's health care plan.
But it was bad.
Verrilli came down with a bit of a cough sometime in the first minute, which is unfortunate for him, since that's generally the only uninterrupted time attorneys have to make their case, before the justices start barraging them with skeptical questions.
And a minute is about how long Verrilli got, including his pause for a drink of water, before Justice Antonin Scalia jumped in to ask why the government can't address the problems with the market for individual health insurance "directly."
"They can address it directly, Justice Scalia, and they are addressing it directly through this, through this Act by regulating the means by which health care, by which health care, is purchased," Verrilli said, according to the court transcript. "That is the way this Act works."
He was then confronted, frequently and skeptically, first by Justice Anthony Kennedy—the presumed "swing" judge on whom liberals are pinning their hopes—and then by two of the conservatives, Chief Justice John Roberts and Justice Samuel Alito, who drew Verrilli into an extended comparison with burial insurance.
Verrilli was finally saved, from the other justices and himself, by Justice Ruth Bader Ginsburg, the senior member of the four-member liberal bloc that's expected to vote in favor of upholding the law, who decided to make his argument for him.
"Mr. Verrilli, I thought that your main point is that, unlike food or any other market, when you made the choice not to buy insurance, even though you have every intent in the world to self-insure, to save for it, when disaster strikes, you may not have the money," she said, adding, "I thought what was unique about this is it's not my choice whether I want to buy a product to keep me healthy, but the cost that I am forcing on other people if I don't buy the product sooner rather than later."
Then Justice Stephen Breyer, another member of the presumptively liberal bloc, jumped in to re-answer a question from Kennedy that Verrilli had been asked earlier.
It's not totally unusual for justices to help the attorney along, but why Verrilli, who had previously argued 17 cases before the Supreme Court, seemed so unprepared for some predictable questions has been the subject of considerable afternoon debate.
One theory is that he was constrained by the fact that the administration apparently chose to make its argument on fairly narrow legal grounds.
Either way, it came across as a dramatic failure, in terms of performance, but there are two things to keep in mind in terms of its overall importance. One is that it is generally believed that the statements from the justices during oral arguments are more reliable predictors of outcome than the performances of the attorneys. The other is that, for all the tough questions Verrilli was asked, and which apparently threw him, the justices, particularly Kennedy, also asked pointed questions of the plaintiffs' attorney.
So nothing's open and shut, even if the liberal justices ended up having to argue the solicitor general's case by themselves.