The Biggest Bomb?

Solicitor General Donald B. Verrilli Jr. has served in the White House, been a top partner at Jenner & Block, earned degrees from Yale and Columbia Law, and clerked on the Supreme Court. Someone with those credentials doesn’t have too many bad days, making it all the more unfortunate that he seemed off his game during the highest-profile moment of his career–his Supreme Court argument in favor of health-care reform. One headline proclaimed Verrilli’s presentation “the worst Supreme Court argument of all time.” Other court watchers used descriptions such as “train wreck” and “disaster.” Sure, the solicitor general got off to a rocky start and seemed nervous, but in the long history of the high court, was his performance really that awful?

“It clearly wasn’t the worst argument–unprepared practitioners and state attorneys general have laid many eggs during oral argument,” says Lucas Powe, a professor at the University of Texas at Austin School of Law and a leading Supreme Court historian. Still, Powe adds, “I am unaware of an SG ever doing so poorly.”

David Garrow, a high-court historian and professor at the University of Pittsburgh School of Law, says it “may well be fair” to characterize Verrilli’s argument as in the “bottom 20 percent” of performances by lawyers from the solicitor general’s office. But Garrow also recalls, “During the brief time Thurgood Marshall was solicitor general, before he became a justice, he had some mediocre days.”

It wasn’t the first time a lawyer arguing a landmark case before the justices stumbled. Deputy solicitor general Malcolm Stewart faltered during the Citizens United campaign-finance case in 2009. While arguing for a legal restriction on political spending by corporations, he wound up saying the law could also, in some circumstances, criminalize the publication of books–not exactly a popular idea. In the famous Roe v. Wade, Jay Floyd, the assistant state attorney general from Texas arguing in favor of an abortion ban, opened with a bad joke that was poorly received by the justices, and he struggled for the remainder of his time. Floyd lost. One thing in his favor–there was no Twitter or blogosphere in 1971. Verrilli isn’t so lucky.

This article appears in the May 2012 issue of The Washingtonian.