The Solicitor General of the United States may have the most difficult job in the legal profession. They speak with the voice of the United States of America, even though America itself speaks with a cacophony of over 300 million different voices. They argue the most challenging cases brought by or against the most powerful nation on the planet, and they often must do so with one arm tied behind their back — balancing the need to win a specific case with the institutional interests of the Justice Department and of the many other arms of America’s government. Even during quiet periods in America’s legal history, the solicitor general must have a great intellect and a gift for reading men and women with titanic egos to determine how they can be persuaded.
Donald Verrilli, who will step down from his position as solicitor general at the end of this month, did not hold this job during a quiet period in American history. He witnessed a transformation in how many of the justices saw their role in society. And he stood against a wave that threatened to crush decades of progressive achievements.
In a statement released Thursday announcing Verrilli’s departure, Attorney General Loretta Lynch describes Verrilli as “one of the most consequential Solicitors General in American history.” This is undoubtedly true, but Verrilli was also something else. Despite one very high profile early stumble, he grew to become the best Supreme Court advocate in the nation. Period.
Readers who only remember the news coverage of Verrilli’s most closely watched oral argument will be surprised by this assessment of his skill. In March 2012, the Supreme Court scheduled three days of oral argument in NFIB v. Sebelius, a case that asked the justices to wipe the entire Affordable Care Act from the pages of American law. When Verrilli stepped to the podium on the second of these three days, he briefly choked and took a sip of water. It wasn’t long before the Republican National Committee cut an ad using doctored audio of Verrilli’s stumble, which ended with a punchline — “ObamaCare: It’s a tough sell.”
Even Verrilli’s most persistent antagonist, Justice Samuel Alito, acknowledges that it is unfair to judge the solicitor general’s skills as an advocate based on this single moment. “To prepare for one argument is exhausting. To do three is Herculean,” Alito told an audience at Duke Law School in 2013. Verrilli “had a bad 30 seconds.”
A fairer criticism of Verrilli’s strategy in NFIB is that he could have struck a different balance between the institutional interests of the Justice Department and the especially pressing need to rescue this particular law. Verrilli’s opponents in this case were themselves led by a former solicitor general, Paul Clement, who brilliantly leveraged the Justice Department’s institutional constraints against Verrilli.
One of the primary arguments Clement and his fellow attorneys challenging Obamacare raised before the justices was that if Congress had the power to enact the law’s individual mandate, which requires most Americans to either carry health insurance or pay higher income taxes, then there would be no limits to the federal government’s powers. The obvious question, which Justice Anthony Kennedy did ask Verrilli during the NFIB oral arguments, was whether Verrilli could “identify for us some limits” on the federal government’s power to regulate commerce that still exist under the Obama administration’s reading of the Constitution.
It was a clever trap to place a Justice Department attorney in because of the unique nature of DOJ’s legal practice. The Justice Department is not simply tasked with defending any one law, it must defend virtually every single law that is challenged in federal court. For this reason, Justice Department lawyers are extraordinarily reluctant to name limits on the federal government’s power for fear that this concession will be used against them in a future case.
Verrilli’s answer to Kennedy was halting when it did not need to be. The solicitor general’s own brief offered a crisp answer to Kennedy’s question — laws that “trench upon areas such as family law, general criminal law, or education” are beyond Congress’ power to regulate commerce — that Verrilli could have simply repeated in an effort to mollify Kennedy. It’s possible that, had Verrilli given such a crisp answer, much of the drama surrounding NFIB could have been avoided.
Nevertheless, the fact remains that Verrilli largely prevailed in NFIB, in no small part because he ignored the advice of legal experts who advised him to deemphasize an argument that eventually swayed Chief Justice John Roberts. Obamacare was weakened but not evicerated, as the NFIB plaintiffs had hoped, and millions of Americans went on to receive health insurance. Thousands of people are alive and insured today who otherwise would have died, and they are alive because Don Verrilli won this most crucial parts of this case.
The Gathering Storm
NFIB was a warning that the waters around American liberalism had grown. Verrilli took up his mantle as the Justice Department’s top litigator at the very moment that the Obama administration’s ideological opponents began to view Supreme Court litigation as a weapon that could be used, if not to eradicate all vestiges of progressive legislation, at the very least to halt new attempts to move America’s policies to the left.
As recently as the presidency of George W. Bush, conservatives embraced the rhetoric of skepticism toward judicial power. President Ronald Reagan pledged to appoint judges who believe in “judicial restraint.” President Bush railed against judges who “give in to temptation and make law instead of interpreting.” Michael Chertoff, Bush’s last Secretary of Homeland Security and a former federal appellate judge, praised the conservative Federalist Society for its efforts to inspire an ethic of “judicial modesty.”
Not long after President Obama took office, however, conservatives began to see the virtue of using the one unelected branch of government to undo policies supported by the liberal in the White House. And they began to raise novel or discredited legal theories — while redoubling their efforts to undermine many constitutional rights embraced by liberals — in the hopes that a Supreme Court dominated by five conservative justices would eagerly sign on to this project.
Don Verrilli stood at the foot of an avalanche, holding up his own hands against the snow. And, as often as not, winter froze in its tracks.
For decades prior to Verrilli’s tenure, the Supreme Court recognized that religious objections could not be wielded to diminish the rights of others. Yet conservative litigators challenged this well-established principle in Burwell v. Hobby Lobby and later in Zubik v. Burwell. For even longer, the Supreme Court understood that the way America treats its immigrants is intimately connected to our foreign policy, and thus it must be determined by our national government and not by fifty different states. And yet the state of Arizona tried to undermine this principle in Arizona v. United States.
As solicitor general, Verrilli fought efforts to render Roe v. Wade a virtual nullity. He defended the Voting Rights Act against advocates who claimed that America simply isn’t racist enough to justify keeping the historic legislation intact. And he worked to ward off a coordinated plan to render the executive branch of government nearly impotent in an age of congressional dysfunction.
Sometimes, Verrilli prevailed in these efforts. Other times he lost. Still other times he helped steer the Court towards a more ambiguous resolution, allowing him to continue to fight another day. Yet, in nearly every case, Verrilli began each fight at the bottom of a mountain, as he was forced to beg five justices hostile to his president and his world view to stay their hands. Don Verrilli stood at the foot of an avalanche, holding up his own hands against the snow. And, as often as not, winter froze in its tracks.
If Verrilli’s most well-known stumble came in his first defense of the Affordable Care Act, then it is fitting that his greatest triumph came in King v. Burwell, a second attempt to gut President Obama’s principal legislative accomplishment.
If anything, the stakes in King were even greater than the stakes in NFIB. NFIB sought to repeal Obamacare before much of the law had been implemented. If it had prevailed, millions of Americans would have lost the opportunity to obtain health insurance in the future, and thousands more would have died.
King, by contrast, sought to rip out the beating heart of Obamacare after it had already been integrated into the fabric of America’s health care system. Had it prevailed, an estimated 8 million would have lost health coverage that they already enjoyed, and nearly 10,000 people every year would have been sentenced to die. King could have sent many insurance markets into a death spiral. It would have sent ripples of havoc throughout the American economy, disrupting entire industries in the process. And it would have taken a law that was intended to save thousands of lives and transformed it into a weapon of mass destruction.
If an invading army inflicted such destruction on a foreign nation, we would name its actions “atrocity.” Human rights groups would condemn the army’s actions as a war crime. The United Nations deploys peacekeeping forces specifically to stop this kind of evil. And yet the King plaintiffs asked the Supreme Court to inflict similar suffering on innocent Americans, and to do so by judicial decree.
There was nothing halting about Verrilli’s performance in King v. Burwell. In my career as a judicial law clerk, attorney, and journalist, I have probably witnessed hundreds of oral arguments, including dozens of arguments delivered by the very best lawyers in the nation. The single best argument I have ever seen was Don Verrilli’s argument in King.
When Justice Antonin Scalia accused Verrilli of trying to rewrite a poorly written law, Verrilli parried by asking the Court to apply a method of statutory interpretation that just happened to be the same method Scalia called for the Court to apply in a 2012 book. When Justice Alito cited to a brief filed by states whose top officials oppose the Affordable Care Act, Verrilli called three of those states out for failing to notice a so-called defect in the Affordable Care Act until it became useful for them to claim that such a defect exists for the purposes of helping the King plaintiffs prevail. When Scalia tried to downplay the harms that would result from a victory for the King plaintiffs by noting that Congress could ward off these consequences, Verrilli shut Scalia down with a pithy joke.
And Verrilli did not just win King v. Burwell. He won in a 6–3 decision that actually placed Obamacare on stronger legal footing than if this case had never been brought in the first place. “In a democracy,” Chief Justice Roberts warned future litigants who want to attack this law, “the power to make the law rests with those chosen by the people” — not with unelected judges. Roberts then issued a broad command to future judges asked to interpret the Affordable Care Act: “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”
At least in the short term, Verrilli’s successor is likely to have a easier road to travel than Verrilli himself did. Scalia is dead. And, while Senate Majority Leader Mitch McConnell (R-KY) is determined to hold that seat open until he likes the person who sits in the Oval Office more than he likes President Obama, an evenly divided 4–4 Court is much friendlier ground for a Democratic administration than the Court Verrilli faced in King and NFIB. If Scalia is eventually replaced by someone who will give liberals a majority on the Supreme Court, then no solicitor general for a generation or more will likely have to face the same challenges that confronted Verrilli.
When President Obama chose Verrilli for his current job, he tasked the lawyer with protecting the interests of the people of the United States in the highest Court in the nation. Don Verrilli was every American’s lawyer. And, in that role, he grew to become the best lawyer currently practicing before the Supreme Court. He returns to private life as a hero who stared down dragons and coaxed them back into a cage using only the force of his own words.
Countless Americans are alive today because of the victories Verrilli won in the Supreme Court.