After the Supreme Court heard oral arguments over the constitutionality of Obama’s healthcare overhaul last week, we discussed the case with veteran Supreme Court litigator Carter Phillips. Phillips, the managing partner of Sidley Austin‘s Washington, D.C. office, is a renowned Supreme Court litigator. He has argued 75 cases in front of the high court, more than any other attorney in private practice.
Did you think Donald Verrilli and Paul Clement did good jobs arguing their cases?
Paul did a spectacularly good job, I thought. He answered the questions effectively. He dodged the hard questions to some extent. He made his points, he did it articulately and over a much longer period of time than most of us are required to do it in. Paul was just on his game. And it was a very special performance.
Don, I don’t know exactly what happened in terms of the start of the mandate case. I don’t know if he got something caught in his throat or exactly what was happening, but he started off slow. But ultimately, I thought Don made all the points he had to make and answered the tough questions effectively. It’s always hard when you compare two people and one has a lights-out couple of days. You look bad by comparison, but the truth is if you were comparing to 99 percent of the lawyers in the country, he still would have been at the top of that heap. It’s just when you’re up against one of the absolute best, it sometimes looks worse because of the comparison.
Do you think Verrilli’s more outspoken critics are fair, or are they just people who watch too much Law and Order and not enough real arguments?
I don’t think its fair to say that he somehow dropped the ball. He put out the best defense that’s out there. The reality is it’s going to be really hard to get some votes and really easy to get others.
Ultimately it’s going to come down to where Justice Kennedy is comfortable. I thought Don did a good job of trying to make the justice feel as comfortable as you can, realizing that this is at the outer limits of Congress’s authority.
They at least addressed the question of limiting principles… and [Don] tried to convince the swing justice that this is not essentially a grant of unlimited authority to Congress.
Can you really predict anything from oral arguments anyway?
More often than not, you can. More so in less visible cases, in some ways. The questions they ask tend to reflect their genuine concerns or thinking about the case. A lot of times you’ll walk out of your oral argument, and you’ll have a pretty good sense of where the court is on that basis. You can learn something. But in a case like this one, where the vote is going to be so close and it really comes down to the thinking of likely a single justice, it is going to be harder to be sure.
Does Kennedy’s apparent hostility really mean anything?
There was a hostility, but there were also elements of concern about whether this is in a different market than any other kind of a market, and a different situation than any other situation. Ultimately, he is going to have to wrestle with himself. Clearly, he hasn’t decided this case going into the arguments. I think he may very well not have decided this case even today [Saturday] after the conference yesterday, [where] they took a vote. I’ll be surprised if his vote is not a tentative one.
At the end of the day, the most hostile thing he said essentially was the government has a heavy burden to show. That’s fine. I think going in, most people would have assumed that was true. And therefore the government is going to have to put up a significant demonstration that this problem is unlike any other problem the economy or the government is facing, and that [they] have a solution to it.
I will say I probably would’ve answered the justices’ question a little differently than Don did there. I would’ve accepted the premise and said, “We recognize we have a burden here. But we are happy to assume it and go from there.”
The other thing that was a little frustrating to me was, I thought Justice Breyer asked a question… a hypothetical about what do you do if the United States is facing a true healthcare crisis, in the sense that there is a virus running through the country and we know to a moral certainty that tens of millions of people are going to die.
In that situation, does Congress have the authority to compel people to take certain action? In my mind, I think the answer has got to be: of course it does. You’re not going to sit here and wait for 50 states to get their act together and let people die in the interim. Congress can take action immediately.
Breyer twice asked Clement that question, and Paul dodged it both times. The only thing I regret is that Breyer didn’t call him out on it a little harder. That would’ve been the highlight of the three days for that side of the case. I’ve been on both sides of these cases. It would have been fun, from my perspective as a detached observer.
Do you think the fact that Breyer didn’t call him out more is indicative of how important the issue is?
The problem with the way oral argument goes — even when you have a long oral argument — is that somebody starts to answer a question and then somebody else interrupts with another question and the flow of it moves in a different direction. I don’t think it was that he didn’t want to. The argument kind of moved off in a different state -– like I said, he came back to it a second time, and asked essentially the same question twice.
I could be wrong. Maybe it’s not as compelling a question as I’ve always thought it was. I was intrigued when he asked it and equally intrigued that Paul was able to not answer it.
I find it very difficult to imagine that anyone seriously believes that Congress couldn’t mandate something under those circumstances, even though ordering somebody to take a shot, on its face, does not seem like regulating interstate commerce.
What’s your prediction for how the court will rule?
Well, I’ve said all along I thought ultimately the court would uphold the statute, and I guess I will stick to that prediction. I would not bet the family farm on that, and I do think companies that are in the healthcare arena and whose futures depend on constitutionality of the statute should better come up with some contingency plans.
What would you prefer to happen?
Personally, I don’t have a dog in the show. I think it is constitutional, but I certainly understand the argument on the other side. If I were on the court, I think I would vote to uphold it, but I would probably spend as much time as I think Justice Kennedy is going to spend deliberating on it. I’d rather not have a whole lot of other cases coming by me at the same time.
Any other random thoughts or observations?
One thing that’s interesting to me — I haven’t studied the severability stuff. But it does seem to me that the severability issue does in some odd way kind provide incentive to uphold the constitutionality of this, because if you declare it unconstitutional you’re going to really have some hard severability issues to sort out. But I suppose that’s why they get paid the big bucks.