Don't Freak Out Over the Healthcare Hearing Just Yet

This man is really bad at arguing things.

The Supreme Court just wrapped up a much-hyped three-day session of oral argument on the constitutionality of the Patient Protection and Affordable Care Act (PPACA, better known as “Obamacare,” or “The Advent of the Beast,” to talk radio listeners). Specifically, the justices heard arguments on the constitutionality of the insurance mandate, the requirement that everyone enter the health insurance risk pool.

This is important because insurance relies on spreading risk. If you guarantee everyone health insurance, clever people will wait until they get sick before buying health care. That would send a flood of sick people at insurance companies and cost them money, and we can't have that. Insurance companies are friendly and wonderful, and their profit margins are an issue of national concern. Instead, the mandate says that we all get insurance while we’re still healthy and create a giant risk pool. We all pay in and then it pays back out.

To oversimplify, if the Court strikes the mandate, then PPACA is probably dead. And after Tuesday’s oral arguments, a lot of experts and journalists have decided that PPACA is dead. They base this prediction almost entirely on the failure of one man: Don Verrilli. He's the solicitor general of the United States of America. And on Tuesday, the most important day of the week’s hearings and maybe the most important days of his professional life, he screwed the pooch hard.

Verrilli’s performance was baffling. His job—officially—is to make legal arguments to courts. He seems really bad at it.

Verrilli was completely unprepared. He knew factoids about health care and health insurance, but he never connected them to anything. He never even made an argument. He never said, “The mandate is a valid exercise of the commerce clause because…” He never said, “Congress can regulate health insurance because…” And he absolutely never said, “The PPACA is constitutional because…” It was implicit that he believed these things, but only because he works for the Obama Administration. He never provided any reason why a disinterested party should believe the PPACA is constitutional.

Verrilli wasn’t even ready for simple questions. Justice Scalia nailed him to the wall early on by simply asking why the insurance mandate exists at all. That stumped Verrilli. Justice Ginsburg had to teach him all that stuff I mentioned. She knows this issue pretty well. Maybe she should be solicitor general.

It wasn’t just Ginsburg who knew the material better than the man getting paid to argue it. Even Clarence Thomas demonstrated a stronger grasp through his habitual silence. Five times, Verrilli found himself so flummoxed that he just stammered until one of the justices threw him a lifeline or reminded him of the constitutional basis for his argument.

Once the Court realized Verrilli had nothing to say, they used him as a ventriloquist dummy. Through Verrilli, the Court talked to itself about the Constitution and healthcare and broccoli. He was not so much a lawyer as a legal spirit medium.

If the Court came across as hostile to Verrilli, it’s only because they had to ask Verrilli, repeatedly, to tell them his argument. You can’t treat someone like a child without coming off dismissive.

Admittedly, the conservative justices seemed pretty hostile to PPACA. Alito compared health insurance to burial insurance, and Scalia and Roberts had their own slippery-slope schtick where they asked Verrilli what would stop the government from making everyone buy gym memberships, cars, and cell phones. Will the government eventually make us eat cake?

But that doesn’t necessarily mean Roberts and co. will strike down the law. In fact, it’s encouraging that the conservative wing of the bench relied on analogies and slippery-slope fallacies. Judges only do that when they have nothing else to work with. It’s great when a judge is pestering you about pretend broccoli: it means the judge can’t pester you with anything real.

Hostility means even less coming from the Supreme Court. They always bust everyone’s chops, even when they agree with someone. They're the most inquisitive and dickish bench in the country. They showed restraint by letting Verrilli go without mocking him overtly.

More importantly, Kennedy, the all-important "swing justice," the most powerful man in America because he doesn’t vote the same way every time, seemed on board with the PPACA. At one point, he asked Verrilli why Congress didn’t pursue the less constitutionally fraught course of raising taxes and funding a single-payer system. Cue everyone on the left: “I know, right?!”

And even if the conservative members of the bench hate the law, it’s still an enormous stretch for them to strike it down. All through the months and weeks leading up to this case, constitutional lawyers have repeatedly confirmed one simple fact: the PPACA is entirely in keeping with commerce clause precedent.

Health insurance is interstate, it’s commerce, and the insurance industry is already subject to intensive federal regulation. The commerce clause already justifies a host of essential federal legislation more tenuously related to commerce, including the Civil Rights Act. The Court is still extremely unlikely to rock the boat so hard it capsizes. Verrilli never made this point; he never made any points. But the Court knows it.

Verrilli’s failure doesn’t change the law. Sure, he failed as an advocate, so hard that it was weird and upsetting. But it’s not cause to freak out. Verrilli’s performance will not decide this case. Indeed, it’s just cynical to assume that the Supreme Court of the United States would be so pliable that a mere attorney could change their minds.