Solicitor General’s Critics Wrong About his Defense of Obamacare

The government’s chief advocate got hammered for his defense of Obamacare before the Supreme Court. Former solicitor general Charles Fried on what his critics got wrong.

Pablo Martinez Monsivais / AP Photo

Among the hardest roles to play in Tuesday’s made-for-radio drama was that of solicitor general. In most Supreme Court cases, which are not followed by all the media or inspire rallies in the Supreme Court plaza, the solicitor general is treated with great deference by the justices not because of his title but because he is trusted to give on behalf of the government a sober, accurate, measured presentation that is scrupulously fair to the other side of the argument and insists on stating the strengths and weaknesses of his own case.

That is what I am sure Solicitor General Donald Verrilli expected to do when he walked into the courtroom; he expected to do his job, which is to defend the constitutionality of an act of Congress (whatever he may thinks of it personally).

What he encountered instead was a barrage of hyperbolic, hostile rhetoric redolent of Tea Party–inspired slogans (we even had the broccoli canard) masquerading as questions, which are supposed to clarify the presentation and probe for weaknesses. I know some were disappointed by Verrilli’s performance. What did they expect? He did his job and he did it very well.

What Verrilli did not do is “rise” to the level of angry declamation coming at him from the other side of the bench. Nor would it have helped his case if he had. You know the old adage: Never argue with a cop—he’s got the gun and the power of arrest. It might have produced some more drama for the audio feed, but that would not have had an effect on the final outcome. He was not trying not to get voted off the island in this episode.

I thought Verrilli would prevail, but that is because he has the law and precedents on his side. After yesterdays argument (or was it a shootout?), I am no longer so confident.