From Hugs to Hand-Wringing: Watching the Legal Left Freak Out at the Supreme Court


ACRU Staff


April 2, 2012

This column by ACRU Senior Legal Analyst Ken Klukowski was published April 1, 2012 on

Over the past several years, I’ve been to the Supreme Court dozens of times to cover cases. Some of them have been blockbusters such as the Citizens United v. FEC campaign finance case, the Snyder v. Phelps (crazy Westboro protesters) free speech case, and the McDonald v. Chicago Second Amendment case.

Yet the Obamacare case is in a class by itself.

There were national heavyweights in the courtroom each of the three days, but it was the red-carpet crowd on Tuesday for the individual mandate argument that drew a who’s-who of the national elite. From President Obama’s Cabinet, there was Attorney General Eric Holder and Secretary Kathleen Sebelius of the Department of Health and Human Services. From Congress, I saw at least six senators, including Minority Leader Mitch McConnell, and a number of House members.

And Valerie Jarrett was there, Obama’s closest friend and adviser in the White House–an Iranian-born Chicago ally whom this White House has done an excellent job of keeping out of the media spotlight lest she be cast as the new Karl Rove. I’ve not heard a single media outlet discuss her presence in the courtroom, but it’s a telling sign that Obama’s best friend in Washington–his eyes and ears and one of the few people who can speak for him–wanted a firsthand account.

Legal elites from across the country were also present, such as Duke’s Professor Walter Dellinger, who had been acting solicitor general under Bill Clinton, and who three years ago said of constitutional questions regarding the then-proposed individual mandate, “This issue is not serious.”

Foremost of these academic luminaries was Professor Larry Tribe of Harvard Law School, the most prominent liberal constitutional scholar in America. (I have a seminal book on constitutional law by Tribe on my bookshelf.) Tribe taught Obama at Harvard, was a principal architect defending Bill Clinton during his impeachment, and argued the first round before the Supreme Court of what came to be known as Bush v. Gore in 2000.

Things went badly for Barack Obama from the outset on Tuesday. Solicitor General Donald Verrilli inexplicably stumbled right out of the gate, mangling his opening statement.

Most of oral argument is a verbal dance between the lawyers and the justices, the oratorical version of watching a swordfight scene in a movie. But the first lawyer has the advantage of setting the stage, framing the discussion to his advantage. You put a lot of time into writing and refining it, rehearsing it repeatedly to get it exactly right.

Yet Verrilli mangled it. After his second sentence he paused, then repeated the entire sentence. Then, a few seconds later, he paused to take a sip of water, asking the justices to excuse him.

After that, it got worse. While Verrilli (a very accomplished lawyer, notwithstanding last week’s criticism) recovered his stride, the justices immediately put him on defense.

The atmosphere transformed notably during Tuesday’s arguments. Before it started, all the power players on the left were glad-handing and hugging, some with the self-congratulatory air of “it’s nice to be masters of the universe.”

As the questions and statements by John Roberts, Antonin Scalia, Anthony Kennedy, and Samuel Alito began to pile up against the centerpiece of Obama’s law, many of them began to fidget in their seats and exchange concerned looks with each other.

The best example was Tribe, who was seated one row ahead of me and two seats over. (Tribe dismissed the seriousness of the case in the New York Times last year, concluding “this law’s constitutionality is open and shut” because the lower-court judges who ruled against it were “confused.”)

Last week, Tribe was the one looking confused. While Eric Holder remained poker-faced throughout the argument–doubtless aware that he was being watched–Tribe couldn’t contain himself. He pursed his lips, leaned forward, steepled his fingers, and at times cast down his eyes. Any doubts that I was misreading these signs were dispelled when my friend Austin Nimocks of the Alliance Defense Fund, sitting next to me, leaned over and whispered, “Watching Tribe’s body language is priceless.”

The reason for this divide is illustrated by one of Tribe’s books, The Invisible Constitution. (That’s not the one on my shelf, and I won’t be adding it anytime soon.) A majority of the justices evidently concur with Alito, who joked during a Federalist Society dinner speech I attended years ago that he doesn’t know how to read invisible ink, so he will confine himself to the visible Constitution that we can all read anytime we want to. (An illustration from the book appears above.)

Among conservatives, the reverse was true. Virginia Attorney General Ken Cuccinelli was glowing. Utah Attorney General Mark Shurtleff looked around during argument, made eye contact with me, and nodded with a big smile that spoke for itself. Libertarian Professor Randy Barnett from Georgetown unsuccessfully tried to conceal his smile behind his hands.

Though nothing could compare to Tuesday, Monday and Wednesday were also momentous events. As Congressman Steve King told me as we exited the Supreme Court’ s bronze doors and grand marble stairs after Wednesday’s severability argument, “There’s nowhere on the planet I’d rather be right now.”

So now the case is in the hands of the justices. On Friday they discussed the case and cast preliminary votes on the judgment for all four issues presented in the case. The opinions are being drafted. And at the end of June those opinions will be finalized, and we’ll all learn what our nation’s highest court decides in NFIB v. Sebelius–the case of the century.



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