Time in the sun

WASHINGTON-Solicitor General Donald Verrilli Jr. appeared in public on Wednesday for the first time since the Supreme Court's healthcare ruling, and if he was smiling about the past term he hid it under his mustache. Verrilli, the Obama administration's point man to argue cases before the high court, won two of his most high-profile cases: healthcare and Arizona immigration.

Court observers battered Verrilli for "choking" during the healthcare arguments in March, particularly on the day of arguments over the constitutionality of the individual mandate. Mother Jones called his performance "one of the most spectacular flameouts in the history of the court." Verrilli that day seemed unprepared for certain questions, his voice shook at times, he stuttered, and he took repeated gulps of water.

On Wednesday, Verrilli joked before he began speaking, "I'm just going to take a sip of water here." He appeared, of all places, at The Heritage Foundation alongside conservative lawyers, including Michael Carvin, one of the lawyers who argued against the individual mandate before the Supreme Court.

Carvin defended Verrilli's performance in the healthcare arguments. "It's really easy to sit at home and parse every sentence," he said, as Verrilli looked down at the ground and tried not to smile. Carvin added wryly that Verrilli had an indefensible law to defend: "The liberal intelligentsia … attacked the messenger."

Verrilli said he didn't think the attacks were inappropriate. "I ought to be subject to criticism like any other government official," he said. "And I guess I was."

Then Carvin analyzed his own side's arguments against the individual mandate.

"The operation was a success, but the patient died," he said, referring to Chief Justice John Roberts finding the mandate unconstitutional under the Commerce Clause but upholding it anyway. "Some conservatives are taking solace in the fact that the chief justice really just rewrote the statute, he didn't rewrite the Constitution," he added. "I don't buy that. Tomorrow they can pass a law that says you will buy broccoli or you will pay a penalty. … I really don't think it's a victory for limited government in the long term."

Carvin also said the ruling might hurt the court itself in the long run. The leaks coming from the court now indicate Roberts switched his vote to strike the law down after President Obama said that doing so would amount to judicial activism. Carvin said the idea that political attacks on the court were somehow influential would increase political pressure on the court during future litigation.

The administration did have a significant loss this past term in the Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC case (which Verrilli did not argue).

In that case, the justices ruled unanimously against the administration and in favor of the church's authority to make its own hiring and firing decisions (see "Church's authority alone," Jan. 11).

"Those were tough cases," Verrilli said.

Carvin noted that the administration made the unprecedented argument that religious organizations had no special protection under the Constitution, but should be subject to the same rules as a labor organization, for example.

Richard Epstein, libertarian legal scholar at New York University School of Law, took the opportunity to blast the Obama administration's attitude toward religious freedom, which he said amounts to "freedom of worship and nothing else." That legal approach is "one of the greatest constitutional miscarriages of this time," Epstein said. "I think the government is completely, dead, inexcusably wrong on that."

The Obama administration will be defending its position on religious freedom in the coming months in the dozen lawsuits against the healthcare law's contraceptive mandate.

During Wednesday's event, Verrilli took the heat directed at the administration passively and said little. But he did celebrate that the healthcare ruling "will make affordable insurance coverage available to millions of people." And he celebrated the Arizona immigration ruling, which struck down three of the four challenged provisions in the state's law and gave a "wait and see" approach" to the one provision that it allowed to stand.

Verrilli said the court in that decision affirmed the federal government's authority over immigration matters.

"Quite significant," he offered.