Sunday, September 29, 2013

Verrilli Scores Well at Supreme Court Despite Questions

   For the past two Supreme Court terms, the justices waited until their last day to issue rulings in the year’s most closely watched cases: the challenges to the Affordable Care Act last year and the Defense of Marriage Act (DOMA) this year. In both cases, Solicitor General Donald Verrilli personally argued for the government, and in both cases the court ruled for the government — admittedly, by one-vote margins in both.
   With a record like that, one would expect Verrilli to be hailed as the Mariano Rivera of Supreme Court advocacy: he closes well in the most important contests. But instead Verrilli has been getting bad notices in the world of Supreme Court watchers.
   For the past two terms, the government — read: the Obama administration — has been getting its clock cleaned at the Supreme Court. According to a compilation by UCLA law professor Adam Winkler, the government was winning fewer than 40 percent of its cases at the Supreme Court as the justices were about to close their term in June. With four late cases added to Winkler’s count as published in The Daily Beast, the final record for the term is 11 wins and 17 losses – a 39 percent record.
   The government was also faring badly this term, according to Winkler, in cases where it participated as a non-party “friend of the court.” Once again combining Winkler’s count with the late-decided cases, the court ruled in favor of the government’s amicus positions in 13 cases and against its view in 17 — about a 43 percent record. Both of those figures are below the government’s historic batting average before the Supreme Court, according to Winkler. And Winkler says the government also lost “an unusually high number” of cases in the previous term.
   The results are somewhat unsurprising, given the clash between a liberal Democratic administration and a conservative court controlled by five Republican appointees. But some court watchers grumble that Verrillii himself bears part of the blame.
  In the courtroom, Verrilli suffers in comparison to his recent predecessors, including Elena Kagan, now a justice herself, and Paul Clement, now in private practice and the universally acclaimed best Supreme Court advocate of the past few years. To this courtroom observer, Verrilli comes off in comparison to those two and some other predecessors as softer spoken, not so amiable, less comfortable with attempted witticisms, and slower with effective retorts to skeptical questions from the bench.
   Despite any shortcomings at the lectern, Verrilli had a good win-loss record in the eight cases that he personally argued during the previous term. The court sided with the government in five, ruled against the government in two, and issued a no-decision of sorts in the other. A re-reading of the transcripts of those arguments shows Verrilli, at least in hindsight, to have been reasonably effective in setting out the government’s positions while fending off skeptical questions from one side of the bench or the other.
   Those losses came in cases that the Obama administration was fated to lose before the Roberts Court. In Shelby County v. Holder, Verrilli had no chance to persuade any of the court’s five conservatives to hold off from striking down part of the Voting Rights Act. Appearing as friend of the court in the affirmative action case, Fisher v. University of Texas, Verrilli similarly faced an uphill fight in urging the court to uphold UT’s race-conscious admissions policies. Still, Verrrilli’s defense of the limited use of race in admissions may have influenced the court’s final ruling to allow the practice but under stricter judicial scrutiny.
   From an opposite perspective, Verrrilli had no problem in Clapper v. Amnesty International in getting the five conservatives to reject the attempted constitutional challenge to the government’s post-9/11 warrantless wiretapping of electronic communications overseas. And the government also was the early favorite in the jurisdictional dispute in City of Arlington v. FCC even though Chief Justice John G. Roberts Jr. and two conservative colleagues ended up dissenting.
   In two other victories, Verrrilli argued nuanced government positions. In Association for Molecular Pathology v. Myriad Genetics, the court unanimously adopted the government’s precise position to bar patents for isolated human genes but allow patents for DNA synthesized in the laboratory. In the earlier case, Kiobel v. Royal Dutch Petroleum, the court agreed with the government to bar the suit by Nigerian nationals for the oil companies’ alleged complicity in human rights violations but adopted a stricter jurisdictional limitation than Verrrilli had presented.
   Verrilli and the administration deserve undoubted credit for its paradoxical victory in the DOMA case. The court’s 5-4 decision in United States v. Windsor vindicates the administration’s controversial decision two years ago to stop defending the law. Verrilli also urged the court to strike down California’s gay-marriage ban, Proposition 8. But during oral argument he said under questioning that the appeal should be dismissed for lack of standing  just as the court ultimately decided (Hollingsworth v. Perry).
    A year earlier, Verrilli had been openly criticized and even mocked for what was seen as a fumbling defense of the Affordable Care Act. Yet the court upheld the law after Roberts accepted the tax power argument that Verrilli had insisted on keeping in the government’s briefs, according to Josh Blackman’s account of the case in his book Unprecedented. So court watchers may need to be cautious in grading Verrrilli’s arguments at least until the court has issued the only grade that matters.

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