ObamaCare / The Title Bout: Top legal minds prepping for a match that will decide law's fate
President Barack Obama's health care overhaul won't create the death panels that his rivals prophesied, but the murder boards are already here.
Yes, murder boards. Read it again. Let it sink in.
What's a murder board? Ten weeks from now, lawyers will debate the constitutionality of the 2010 Affordable Care Act before the U.S. Supreme Court. In the meantime, they'll practice for hours on end.
"Would hundreds of hours be an exaggeration? Probably not," said Arthur Hellman, a law professor at the University of Pittsburgh. "This is possibly the most important constitutional case of our generation; you want to anticipate everything."
Former solicitor general Paul D. Clement will argue that it's unconstitutional to make everyone buy health care. Current solicitor general Donald B. Verrilli will argue that the provision -- commonly called the "personal mandate" -- is within the government's scope of power.
As both lawyers prepare, "murder boards" are their secret weapon.
A murder board -- a term said to have origins in the U.S. military -- is, within the legal profession, an all-star assembly of lawyers recruited to form a mock court (in this case, the Supreme Court). Before Mr. Clement and Mr. Verrilli argue in front of the real Supreme Court, they'll practice with murder boards.
"The lawyers recruited for practice arguments are the most eminent and sought-after in the legal profession," Mr. Hellman said. "They're very top lawyers who try to do what they think the justices might do, and come up with every possible question -- and the hardest possible question -- they can."
If everything goes right, not a single question from the real Supreme Court will be new. Many of the murder board members have clerked for Supreme Court justices or themselves have argued before the Supreme Court.
But for the lawyers pitted against each other to debate the health care law in the real Supreme Court, the experience will hardly be a new one.
This is especially true for Mr. Clement, who served as solicitor general under President George W. Bush for three years.
Now a private attorney at Bankroft PLLC, he has argued in front of the Supreme Court 55 times. This term alone, his portfolio includes the Texas redistricting cases and the Arizona immigration law.
"He is in the middle of probably the most remarkable Supreme Court term that anybody's ever had," said Stephen Wermiel, law professor at American University. "It's pretty extraordinary. There are lawyers who will argue two or three times in one term, but it's rare for them to argue that many big cases in a single term."
Mr. Verrilli became solicitor general in June 2011, stepping in for Elena Kagan as she departed the post to become a Supreme Court justice. He built his reputation primarily in private practice, arguing 12 cases in front of the Supreme Court before joining the Justice Department in 2009.
"Think of this as a boxing card with a title bout and several other fairly interesting matches on the same card," Mr. Wermiel said.
Experience and practice could sway the winner in the health care arguments. An oral argument in the Supreme Court is almost constantly being interrupted by questions from the justices, so the lawyer who is quickest on his feet will be most effective.
"You can never tell when one of the justices will come up with some question that strikes at the heart of the matter or points to a weakness in the case, and that's where the really superb attorney comes into his or her own," Mr. Hellman said.
"Almost any good lawyer can deliver a talk, but that's not what happens here. The lawyers will probably be lucky to get out three or four sentences at a time before another justice jumps in."
The lawyers will likely take two separate approaches in their arguments, Mr. Hellman said.
Mr. Clement, arguing that the law should be struck down, will ask the court to look to the future and worry about an empowered government that creates even more personal mandates. If the government can make everyone buy health insurance, what's stopping it from requiring everyone to buy broccoli?
The conservative standout was hired by a group of Republican governors and attorneys general of 26 states that challenged the law.
Mr. Verrilli, arguing that the law should survive the court's review, will ask the court to look to the past, where it has governed personal behavior when that behavior affects interstate commerce.
"In a way, the challengers have the toughest job with the precedents because there are so many cases upholding this congressional power," Mr. Hellman said. "The government's lawyer has a harder time forward looking, because it's difficult to draw a line that'll include this law but not other laws Congress might come up with in future that delve more deeply into personal mandates."
Although disadvantaged while arguing precedents, Mr. Clement will likely try to convince the court that blocking this law is consistent with past decisions.
"I don't think we'll hear any lawyer urging the court to overrule any of its precedents," Mr. Hellman said. "They wouldn't want it to seem that they're going away from precedent on this case. Lawyers on both sides will see this as imperative. Just because it's a high-profile issue and a novel issue doesn't mean we can abandon precedent."
Despite the boxing match analogy, Mr. Wermiel isn't ready to predict a victor.
"This is a matchup of very experienced lawyers," he said. "If you're handicapping in advance, I don't think you can look and say Lawyer 'X' is at an extreme disadvantage."
First Published January 23, 2012 12:00 am