Solicitor General triumphs in health care case

Testiest questioning centered on the health care law’s ‘individual mandate’

By Sylvia Hsieh
The Daily Record Newswire
BOSTON — Everyone has experienced a bad day at the office. And most lawyers have developed a thick skin against public criticism and mockery. But only one lawyer this year had to endure being called a “train wreck” on national television and being pilloried for making “the worst Supreme Court argument of all time.”

Such was the low point for Solicitor General Donald B. Verrilli, Jr. after defending the highly divisive Affordable Care Act, a.k.a. Obamacare, before the High Court.

Immediately after the contentious oral arguments, critics piled on, blasting Verrilli’s performance as rambling, nervous and unprepared.

At best, Verrilli — a veteran appellate lawyer who has been called one of the smartest lawyers around — seemed to be having an off day.

“Any human being would have a tough time hearing those kinds of things being said [about himself]. Don is incredibly nice and self-effacing in a town where some view themselves as the most important person within a 25-mile radius. It had to be very difficult,” said Andrew Pincus, a Supreme Court litigator and partner at Mayer Brown in Washington.

Pincus, who was in the courtroom for the arguments, said the criticism was unfair and came from pundits who confused style with substance and oral arguments with a television debate.

A former chair of Jenner & Block’s Supreme Court practice, Verrilli previously served as deputy Attorney General in the U.S. Department of Justice and then deputy counsel for President Barack Obama.

In June 2011, Verrilli was sworn in as Solicitor General, filling the role Elena Kagan left to become a Supreme Court justice.

Verrilli was quickly thrust into the spotlight in March 2012 during a three-day grilling from the justices in which he was tasked with defending the centerpiece of the administration’s legislative accomplishments.
Talk about pressure.

The testiest questioning centered on the “individual mandate” in the health care law, and required Verrilli to look to the Commerce Clause in support of his main argument that Congress can force Americans to purchase health insurance or pay a fee, while preserving his second argument that the fee could be construed as a tax under Congress’ taxation power.

In June, Verrilli’s critics were silenced by the unexpected news that the Supreme Court had upheld Obamacare under Congress’ taxing power, with Chief Justice John G. Roberts Jr. delivering the deciding vote in a 5-4 ruling.

In another surprising victory this year, Verrilli successfully argued that a harsh Arizona immigration statute was preempted by the federal immigration scheme.

Many observers had predicted that the Supreme Court would side with Arizona, as several justices had hinted at their support for at least some of the state law’s provisions, but the Court overturned three of the four provisions in what could only be called a win for Verrilli.

For those who know Verrilli, the way he handled the heat was the only thing that was not a surprise this term.

“He put his head down, didn’t lash out at critics and went ahead and did his job,” said Pincus. “And he was vindicated in the end.”