When Solicitor General Donald Verrilli was just two or three sentences into his opening statement, Justice Antonin Scalia interrupted him with a question. Verrilli had already been stumbling through his opening, and the premature question threw him off even more.
It was a theme that would be repeated for an hour straight. When asked simple questions such as “Why aren’t those problems that the federal government can address directly?” and “Where is the limiting principle?”, he staggered and struggled to find the right words. On more than one occasion, Justices Sotomayor and Kagan stepped in to practically answer questions on Verrilli’s behalf. On two occasions, his answers prompted laughter from the justices and the crowd.
I was shocked by the pace of the argument.; the hour flew by. Justices are relentless, and attack every answer from every angle, often interrupting before answers are finished. Sometimes it felt like ping pong, as justices from opposite ends of the bench would repeatedly toss questions. On more than one occasion, one answer would go unfinished as another one was answered, and the first justice would eventually (and sarcastically) ask for their question to be answered.
Between the HHS argument and the argument on behalf of the states, I turned to the person next to me and shared my thoughts: “It seemed like Verrilli was stumbling a lot – but on substance he still seemed pretty solid.”
He nodded in agreement and added, “Yeah, he stumbled a lot… But wait ‘til you see Clement. The disparity between them will be huge.” He put two fingers in the air, far apart, to signal a large gap.
And when Paul Clement started arguing, it was clear that my bench buddy had been correct. His voice was louder than Varrilli’s; his tone more confident; his arguments clearer. He was interrupted significantly later in his opening than Verrilli was during his opening.
When interrupted, it was as though Clement knew exactly what he was going to be asked. On multiple occasions, he cited page numbers and paragraph numbers from the PPACA, and cited verbatim arguments from past opinions. Even when Justice Breyer made up a hypothetical in which nearly the entire nation had a contagious epidemic, Clement answered as easily as if Breyer had asked about the weather.
Half a dozen times it seemed as though Clement was backed into an inescapable corner during his argument. Each time, he was able to obliterate premises, attack arguments, and quote legal precedents in order to stick to his arguments. Each of his arguments seemed flawless, and he was able to double-down on them even in the face of unyielding questions.
The most interesting back-and-forth conversations were between Clement and Justice Kagan. Kagan was prepared to argue this case in front of the Supreme Court before she was selected to serve on the court herself, so she has a large depth of knowledge from which to draw questions. She attacked Clement’s arguments hard and made many of her own arguments, and Clement would counter each one with increasing intensity. It was entertaining to watch: Two of the greatest minds of their generation debating the Constitution. It was a political nerd’s dream.
Watching Paul Clement argue this case was like watching Pedro Martinez at the 1999 All-Star Game. The best that there is, on the most important stage, delivering his best performance. When he is eventually, inevitably a Supreme Court Justice, people will look back at this case and see it as his finest hour.
At the stroke of 12:00 noon, the gavel slammed shut a remarkable process. It didn’t sink in until a while later, but I still looked around the Courtroom in amazement at what the two days of camping had brought. For the price of a short walk, a few nights sleep in the sidewalk, and the help of some great friends, I was able to get the historic experience I was looking for. To see the most brilliant legal minds discuss the role of our federal government was something that I will not soon forget.
Camp Supreme: Mission Accomplished.
Special thanks to everyone for reading, encouraging, bringing food, and showing interest in my journey. That was most of the fun!