by Jeremy Leaming
Earlier this year after U.S. Solicitor General Donald B. Verrilli Jr. took to the Supreme Court to defend the Obama administration’s landmark health care reform law and argue against portions of Arizona’s rigid anti-immigrant law, some pundits scored Verrilli for apparently dropping the ball, so-to-speak. After the oral argument in the Arizona case, the Drudge Report claimed “Obama’s Lawyer Chokes Again.” And from the left Adam Serwer in a piece for Mother Jones said Verrilli (pictured) seemed unprepared for defending the Affordable Care Act, saying he appeared to advance only “jargon and talking points.”
At the time there was some push back, including this ACSblog post, against the trashing of Verrilli’s work. Andrew Pincus, a partner at Mayer Brown, scoffed at the criticism telling MSNBC that oral argument very rarely plays a major factor in determining the outcome of cases before the high court.
But in a much more thoughtful and in-depth piece for SCOTUSblog, distinguished law professor Alan B. Morrison explains why figuring out Supreme Court wins is not a simple endeavor.
For example, Morrison, the Lerner Family Associate Dean for Public Interest and Public Service Law at GW, notes the complexity of the case involving the ACA – there were multiple issues at play in that one.
In the ACA case, the Court agreed with the United States that the Anti-Injunction Act did not preclude it from reaching the merits of the challenge to the individual mandate, but does that count as a “win,” or did it instead just allow the government to avoid having to come back another day? On the mandate itself, it lost its Commerce Clause justification, but the Court sustained the entire provision on the ground – also advanced by the government, although in less detail – that it was a constitutional tax. Does that count as a win (because the law was ultimately upheld), or a tie (because the Court rejected the government’s primary argument for sustaining it)?
In an effort to create some kind of scorecard, we made several choices: we excluded what seem to be minor issues, and in some cases combined two related arguments into one issue when the result would be the same either way, and the legal bases for the SG’s positions were close if not identical. As it turns out, only the ACA and Arizona immigration cases had what we considered to be multiple issues (5 and 4, respectively), and the government was regarded as having “won” both cases; on an issue basis, the score was 3-2 and 3-1, respectively. While we recognized that some wins are much more important than others, we ultimately concluded that attempting to apply an importance standard would be too subjective for a scoring system like this and thus treated all wins or losses equally.
Morrison’s research reveals, in part, that determining how well the Solicitor General is performing is not easy to “answer accurately and fairly to all concerned.” Of course for many opponents of the Obama administration’s efforts to reform the health care system and fight a ridiculously oppressive immigration law, simplistic attacks and spin sufficed.