AT THE END OF MARCH, when Solicitor General Donald Verrilli appeared before the Supreme Court to make the case for the Affordable Care Act, he was widely perceived to have choked. When he approached the podium in the packed courtroom, the stakes could not have been higher. Verrilli was defending the Obama administration’s central domestic achievement, a reform that had consumed the White House for the better part of the president’s first term.
In the oral arguments over the constitutionality of health care reform, John Roberts and Anthony Kennedy seemed at times to be looking for a reason to uphold the law despite their doubts. Unfortunately, Solicitor General Donald Verrilli didn’t give it to them.
In the weeks preceding the Obamacare case, many veteran Supreme Court-watchers could not bring themselves to believe that a majority of the justices would find the individual health insurance mandate unconstitutional.
As Tuesday’s oral argument on the Affordable Care Act’s individual mandate came to a close, several commentators faulted Solicitor General Donald Verrilli’s performance. Particularly harsh was CNN’s Jeffrey Toobin, who called the two hour argument “a train wreck for the Obama Administration.” But having sat through the oral argument and re-read the transcript, I have to dissent. Especially on paper, Verrilli’s performance appears quite strong—and possibly more effective than that of his opponents, Michael Carvin and the justly renowned Paul Clement. Here’s why.