WASHINGTON — And now for the finger-pointing and recriminations, the scenarios unseen and legal arguments unadvanced that could have saved what many say is the most significant social policy change in half a century. That 1792 law requiring all men older than 18 to buy a musket — why didn’t the Obama administration latch on to that to salvage the individual mandate? That blind spot about broccoli!
Wait, what’s that you say? The Supreme Court has not yet handed down its decision in the health-care cases?
Yes. We are waiting. All of us, the cable TV analysts with their cocky command of justices’ raised eyebrows, the sharpeners of political spears on left and right, the giant insurers and think-tank industrialists, all must fidget and wait.
But let’s declare the severability of those interests to focus on one individual for whom the last few days of June in Washington hold a very personal agony: Solicitor General Donald B. Verrilli Jr.
He stood in March before the nine justices to make the government’s arguments defending the constitutionality of the Affordable Care Act, then endured swift and harsh criticism of his delivery. Monday, he will show up in court, rise when the justices enter, sit back down and wait some more. Maybe they will hand down a decision on health care Monday. Maybe Wednesday or Thursday.
Nobody knows.
There are a handful of cases pending, and Verrilli has three of them. He waits, also, for decisions in a landmark Arizona immigration case and a First Amendment case involving lying about military honors.
“There is nothing you can do,” says former Solicitor General Ted Olson, who has sat in this chair. “You have to be patient.” It is miserable.
Plus, you suffer in full view of the public.
That is especially difficult, says Walter Dellinger, who was acting solicitor general under President Bill Clinton. Dellinger defended Clinton and tried to ward off a sexual harassment claim from former Arkansas state employee Paula Jones by arguing that a sitting president should be shielded from lawsuits for acts prior to taking office.
Court tradition mandates that the solicitor general, the federal government’s lawyer in the Supreme Court, sit at the counsel table right in front of the black-robed ones as the decisions are announced.
“I recall listening to the justices unaminously reject every argument I had made in Clinton v. Jones,” Dellinger says, “while I sat there with everyone in the courtroom watching.”
The heart palpitations start about five minutes before 10 a.m., when the justices begin reading their opinions, “and the passage of time makes you increasingly nervous,” says Paul Smith, a former law partner of Verrilli, who successfully challenged a Texas law that criminalized gay sex and a California law that banned violent video games. “The court takes its sweet time to decide, and as you go through announcement after announcement, you say, ‘This is going to be harder than I thought.’ “
Sometimes, justice is swift.
Two examples of the you-just-never-know phenomenon: As the nation waited to learn who it had elected president in 2000, the court took up Bush v. Gore on Dec. 11, then rendered a verdict …
“In 36 hours,” Olson says. He had made his best oral arguments on behalf of Bush, and the next day, with “nothing else to do but climb the walls,” he and his wife, Barbara, bought “very expensive food and drank the most expensive wine we had.” Suddenly, word came of a decision at 10 at night, and, he says, “it was necessary to put the intoxication part aside — and figure out what they had decided.”
In the Citizens United case, which raised questions about the role of corporate money in political campaigns, Olson showed up in the court with his client on the last day of June, on the last day of the term, with all other cases decided, only to hear the clerk intone that the case had been rescheduled for additional arguments. “All the air went out of the room,” he recalls, and he suddenly had a pile of summer homework.
Those in the small Supreme Court bar also have to manage the wait for their clients, for whom the ruling in the court has enormous — and final — consequences.
“By the time you are at this point in the case, you feel the impact on their feelings,” says Patricia A. Millett, who heads Akin Gump’s Supreme Court practice and has argued 35 cases before the bench. “You have a desperate desire to deliver… . I have had dreams fretting over opinions.”
Verrilli has had consummate practice at managing the wait in high-stakes cases. His successful appeal of Maryland inmate Kevin Wiggins’ death sentence for murder established new criteria for what constitutes effective assistance of counsel — and saved a man from lethal injection.
That case, Verrilli told The Washington Post this year, “at some level helped me understand what it means to actually be a lawyer. I was this guy’s champion in the world, and I was that for 10 years.” Verrilli declined to comment for this article.
In the health-care case, which is actually four different issues under consideration together, “you have to await that call from the president,” Smith says, as your most prominent client.
For some, “hand-down day,” in Supreme Court lingo, is not as stomach-turning as argument day.
“All my anxiety dreams,” says Kathryn Kolbert, who argued to uphold abortion rights in two cases before the court and worked on a third, “came before the oral arguments, you know, of standing there before the court without your skirt.”
It was during the three days of oral arguments that Verrilli coughed on a drink of water and rambled, moments of hesitation that unleashed a firestorm of criticism that appalled the members of the Supreme Court bar interviewed for this article.
“People think he is getting a very unfair rap for that,” says Millett. Assessing the discussion between the justices and Verrilli and opposing counsel Paul Clement “requires a much more complicated analysis than one would have by sticking their heads into the courtroom for 20 minutes.”
She notes that when Verrilli and Clement were finishing arguing their next joint case before the high court, Chief Justice John G. Roberts Jr. took the rare step of complimenting them, saying, “Thank you, Mr. Clement, General Verrilli. Well argued on both sides.”
As to whether oral arguments make a difference or not, “the only ones who can answer that” — the justices — “won’t tell you,” Olson says.
“The thing about Don is,” Smith says, “he has argued huge cases before. I’m sure he is philosophical about it; it will be what it will be.”
And the heavy caseload of the solicitor general, a position established by Congress in 1870 and the only one in the federal bureaucracy requiring its holder to be “learned in the law,” is an excellent distraction from the historic moment at hand this week.
In addition to arguing nine cases before the court this term, Verrilli has overseen and signed off on the government’s position on some 2,000 appeals from lower courts.
Over the weekend, as a respite only a lawyer could love, Verrilli went to Wilmington for the North Carolina Bar Association’s annual conference.
He sat on a stage next to a potted plant. He wore a sport jacket, tie, slacks and loafers. He talked with Dellinger about how the office of solicitor general works before a room of 400 lawyers. For someone with three major cases pending, he seemed completely relaxed.
Dellinger asked him how he was holding up.
“I’m not curled up in a fetal position under the bed,” Verrilli said, to much laughter.
He was, he said, already at work on cases for the next term.
