Before the Supreme Court’s oral argument on the Patient Protection and Affordable Care Act, I was told by people I trust that Paul Clement was an outstanding lawyer. He proved it. The New York Times’ coverage of one exchange illustrates why.
Reporter Adam Liptak, after claiming that Justice Anthony Kennedy’s “touchstone and guiding principle” is liberty, went on to write this:
The point was not lost on Solicitor General Donald B. Verrilli Jr., who concluded his defense of the law at the court this week with remarks aimed squarely at Justice Kennedy. Mr. Verrilli said there was “a profound connection” between health care and liberty.
“There will be millions of people with chronic conditions like diabetes and heart disease,” he said, “and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty.”
Paul D. Clement, representing 26 states challenging the law, had a comeback. “I would respectfully suggest,” he said, “that it’s a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not.”
Listening to the oral arguments on the Supreme Court during the last three days is a reminder of why it is, in many respects, the intellectual crown jewel for conservatives, and why it’s vital that those appointed to the high court aren’t simply reliable votes but are capable of making compelling arguments.
To hear Justices Scalia, Alito, Roberts, and even Kennedy slice and dice Solicitor General Donald Verrilli was sheer delight, as they exposed one bad argument and one flawed premise after another. Among other things, they pressed Verrilli on what the limiting principle was under the Commerce Clause. “Can you create commerce in order to regulate it?” Justice Kennedy asked. Justice Alito brought up the market for burial services and asked if the government could mandate funeral insurance (the argument being that because we all die eventually, why shouldn’t we transfer the costs of our deaths to the rest of society). When Justice Scalia asked Verrilli to defend the individual mandate provision of ObamaCare, he wondered why the federal government couldn’t also make citizens buy vegetables. “Could you define the market — everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli,” Scalia asked. Justice Roberts asked if the federal government can make you buy a cell phone.