When he appeared before the Supreme Court to challenge Obamacare last March, Paul Clement, the man who has argued more cases before the high court than anyone else since 2000, was according to NPR’s Nina Totenberg, “a walking superlative” and “a wunderkind.” In his New York Times blogging, David Brooks likened Clement to “LeBron James on a fast break.” To continue the basketball metaphor, former Bush attorney general John Ashcroft once referred to Clement, a former Bush administration solicitor general, as “a Michael Jordan-like draft pick.” Clement was also the top pick in a Reuters analysis of front-runners for a Supreme Court nomination if Mitt Romney is elected president.* “Duh, right?” the Wall Street Journal’s law blogger Joe Palazzolo wrote, pointing out that Clement was all of 45.
Clement may still be worthy of the praise—he will always have the glory of crushing at oral argument—but though no one has much mentioned it, he also came out of this last Supreme Court term a big loser. In the end, after all the accolades for him and all the derision for his opponent, Solicitor General Donald Verrilli, it was Clement who lost the two biggest cases of the term: The Republican challenge to the Affordable Care Act and the state of Arizona’s defense of its hard-charging immigration law. What to make of this? Even perfect people have setbacks. Also, oral arguments do not matter as much as they appear to in the moment, and the same may be true of elite Supreme Court lawyers in general. Sure, if your case makes it to the Supreme Court, you don’t want a schlub up there representing you. But even the best lawyer can’t convince a majority of the justices to take a position they’re allergic to.
That is how Tom Goldstein, creator of Scotusblog and another Supreme Court specialist, sees it. Goldstein still gives Clement raves: “He got the very most that was humanly possible out of these cases,” Goldstein said. “With health care in particular, he took what I always regarded as an impossible case and almost pulled it off. My opinion remains unqualified that he is the best.”
Goldstein also made the lawyerly point that Clement won key concessions from the court in both cases—partial victories that will live on when lower courts interpret and rely on these rulings. In the Arizona case, five justices decided to let the state try to enforce its “show me your papers” provision—the requirement that police check a person’s immigration status if they have reason to believe he is here illegally—rather than blocking that part of the law from going into effect, as the lower courts had done. And in the health care case, five justices agreed with Clement that Congress can’t force people to buy health care based on its powers under the Commerce Clause, and seven said Congress couldn’t take away all state Medicaid funds if states don’t want to go along with Obamacare’s expansion of the program. “That’s the lasting legal legacy of the ACA decision,” Goldstein says. Clement offered a similar, if more rueful, take on the day of the ruling: “I can’t remember a case where five justices accepted more of my arguments, but nonetheless didn’t side with us on the bottom line.” (I called him for comment today but didn’t hear back.)
The bottom line, as Goldstein puts it, is that “at some point, there’s only so much lawyers can do. The question I ask myself is, ‘What argument could he have made that he didn’t? What argument could he have made better?’ I have no answer.” Fair enough. But doesn’t the obvious point here—lawyers matter less than judges—suggest that the services of the elite Supreme Court bar can be overrated? A bad lawyer can screw up at oral argument by conceding a point he or she shouldn’t have. And a really bad lawyer can blow it completely by writing a brief that doesn’t cover all the legal ground that it should. But if you have the bases covered, and you don’t embarrass yourself on the big day, the case you argue will probably turn far more on the predilections of the justices, and on the court’s precedents, than it will on your brilliance.
It’s a concession that, however obvious, doesn’t get made a lot in Washington. That’s probably because it goes against the self interest of the small group of lawyers who have made Supreme Court practice a specialty and are either paid dearly for it or help their firms attract other mega-business. Increasingly, they’ve succeeded in becoming must-haves. According to a study by Harvard law professor Richard Lazarus, Supreme Court specialists argued 6 percent of the cases before the high court 30 years ago, compared to more than 50 percent by 2008.* That has frustrated other lawyers around the country, as Adam Liptak has pointed out in the New York Times: “The old guard is often wary of, if not hostile toward, the new breed of skilled and ambitious advocates, fearing that they are more interested in the glory of a Supreme Court argument than in what is best for their clients and the development of the law.”
Read the rest of Liptak’s article for a thoughtful analysis of that critique. I will just point out here that some of the time we are talking about a lot of money. Clement has “confirmed speculation that he typically bills in the range of $1,000 an hour.” In the health care cases, he reportedly made a deal a year ago to cap his fee at $250,000. (I don’t know if that covers the Supreme Court work.) Clement recently asked the Supreme Court to hear a case next term about whether Congress can ban same-sex marriage via the Defense of Marriage Act. About that one, the New York Times reported last October, “House Republicans recently tripled the cap on his fees to $1.5 million, paid from tax coffers.”
Yes, we the taxpayers are paying Clement to defend DOMA. We also pay Donald Verrilli, of course, but not $1,000 an hour or $1.5 million—his annual salary is $165,300. Surely, the House Republicans will still bet on Clement as worth the price, never mind his losses this term. But his record is a reminder, welcome or not, that even the best lawyering doesn’t mean victory before the Supreme Court. The argument five justices prefer, plus good-enough lawyering, does.
Correction, July 6, 2012: This article originally said an analysis of front-runners for a Supreme Court nomination if Mitt Romney is elected president was done by AP. (Return to the corrected sentence.) July 9, 2012:It also originally identified Richard Lazarus as a Georgetown professor. (Return to the corrected sentene.)