Last week, supporters of health care reform may have seen their hopes and dreams go up in flames. Solicitor General Donald B. Verrilli Jr., tasked with defending the Affordable Care Act (ACA) in front of the U.S. Supreme Court, gave a rambling, cough-filled, nervous opening statement that brought to mind Woody Allen without the jokes. Most pundits now believe the individual mandate will be struck down, and, based on the skepticism by the justices that they have the jurisdiction and the stamina to go through the ACA line-by-line, the whole bill may be thrown out with it.
Though some insiders have suggested that having SCOTUS strike down the ACA could actually help Obama get re-elected by energizing the base, it would negate Obama’s signature domestic achievement and could engender some blowback from liberals who wished Obama had supported a single-payer system in the first place (which would not have suffered the same legal challenges).
This is a time of lament for Democrats. Still, they would be wise to consider where they went wrong, and it is hard to not lay much of the blame at Verrilli’s feet. It was not just his poise that was lacking; he was utterly unprepared for the most obvious lines of questioning. Mother Jones puts it best:
The months leading up to the arguments made it clear that the government would face this obvious question [about a limiting principle]. The law’s defenders knew that they had to find a simple way of answering it so that its argument didn’t leave the federal government with unlimited power. That is, Obamacare defenders would have to explain to the justices why allowing the government to compel individuals to buy insurance did not mean that the government could make individuals buy anything—(say, broccoli or health club memberships, both of which Scalia mentioned). [Solicitor General Donald B. Verrilli Jr.] was unable to do so concisely, leaving the Democratic appointees on the court to throw him life lines, all of which a flailing Verrilli failed to grasp.
So if Verrilli failed, the obvious question is: who could have done better? Allow me to suggest a few choices. These lawyers proved that they are diligent in their preparation, extemporaneously creative, and can succeed in high-pressure cases.
3. Billy Flynn (Richard Gere) in “Chicago”
Dealing with a media circus and a highly-politicized court? Call Billy Flynn. That’s what Roxie Hart did, and it worked out pretty well for her. Flynn is no saint. As said in the film, his number one client is Billy Flynn. But he knows that in a town in which both the law and the media are corrupted (sound familiar?), it’s not the lawyer with the best argument who wins. It’s the one with the ol’ razzle-dazzle. Say what you will about Verrilli and his career accomplishments, but flashy he is not. Billy Flynn might not have come up with a better legal argument, but he would have made a better case.
2. Alan Isaacman (Edward Norton) in “The People vs. Larry Flynt”
Isaacman, a fictional amalgam of two real-life lawyers who represented the famous creator of Hustler Magazine, has actual Supreme Court experience. After his client published a satirical story about Reverend Jerry Falwell having sex with his mother, Isaacman found himself in a challenging situation: defending a pornographer on the biggest stage in the world. With poise, humor, and humility, Isaacman passionately argued that his client was protected by the 1st Amendment and earned a victory not just for Flynt but for free speech advocates everywhere. His poise in the following scene is just what was needed last week – and what Verrilli lacked. Best of all, he seemed to have a good rapport with Justice Scalia, which might have come in handy.
1. (tie) Atticus Finch (Gregory Peck) in “To Kill a Mockingbird”/ Jake Brigance (Matthew McConaughey) in “A Time To Kill”
Obviously, Peck’s Finch has left a lasting impression on our culture, but Brigance is no slouch himself. They both had similar challenges: defending a black man in a racially-divided culture that was quick to assume his guilt. Finch has become an icon due to Peck’s memorable performance and the brilliance of the overall narrative, but his client was completely innocent. Brigance, whose client publicly murdered the man accused of raping his daughter, actually had the more Herculean task. In his closing statement, Brigance asks the jury to imagine that a white man had committed these crimes, suggesting that they might have set him free. He highlights the deep prejudice in their culture and the failures of a legal system that finds the opposing lawyer – a smarmy DA – seeking the death penalty to boost his political career. This kind of creativity and passion in the face of political and cultural challenges – seen here in Brigance’s long, brilliant closing statement – stands in stark contrast to Verrilli’s stumbling monotone.