While writing my book about the challenge to the Affordable Care Act case, I had the joy of reading through all of the briefs at the Supreme Court, as well as all of the transcripts from oral arguments. I have some interesting reflections, many of which I’ll save for the book (preview: the argument the Chief Justice adopted was right there, under our noses), but in this post, I will comment on a peculiar, but effective trait of Paul Clement’s advocacy.
Whenever he is asked a tough question that requires a lengthy answer, he always says there are two possible answers/problems/issues/etc. Always two. He frequently begins this statement with “Well” followed by the Justices’ name.
From the mandate arguments:
- Well, Justice [Sotomayor], I think there’s two points to make on that.
- MR. CLEMENT: Well, I don’t know, Justice Kennedy, but, if it is, I think there’s at least two problems with it.
- I think the Framers would have identified the difference between those two scenarios, and I don’t think that the great Chief Justice would have said that forcing people to put their deposits in the Bank of the United States was necessary and proper.
- And that gets at the idea that there’s two kinds of cost shifting that are going on here.
- MR. CLEMENT: Well, the other two principles are Lopez . . . .
- I’d like to say two very brief things about the taxing power, if I could.
From the Medicaid arguments:
- The constitutionality of the Act’s massive expansion of Medicaid depends on the answer to two related questions.
- No, Justice Ginsburg, this is distinct in two different directions.
- It says it — there’s two places where it says it.
- Well, Justice Ginsburg, there’s two reasons that might be different.
From the severability arguments:
- Well, two responses, Justice Scalia
- MR. CLEMENT: But, Justice Kagan, I mean, I actually think Booker supports our point as well, because there are two aspects of the remedial holding of Booker.
- MR. CLEMENT: Well, Justice Ginsburg, two kinds of responses to that
The “well” + Justice name seems to be a frame Clement uses to launch into his rule of two. It is likely so automatic that Clement can use those precious seconds to formulate his devastating bimodal reply.
Even the Solicitor General got in on the rule of two:
- GENERAL VERRILLI: So, two things about that, Justice Kennedy.
- GENERAL VERRILLI: Yes, for two reasons.
- GENERAL VERRILLI: We got two [limiting principles] and they’re — they’re different. Let me state them.
- GENERAL VERRILLI: And that — and I think in terms of the tax power, I think it’s useful to separate this into two questions.
- GENERAL VERRILLI: Well, Justice Scalia, what the — two things about that.
As did Mike Carvin:
- MR. CARVIN: I’d — I’d like to address that in two ways, if I could, Mr. Chief Justice.
- MR. CARVIn. Two points, one of which Mr. Clement’s already made . . . .
Though, there were (gasp) three things that made the statute unique, as illustrated by this funny colloquy with Justice Scalia:
MR. CLEMENT: The answer is no, and that’s because we’re here saying there are three things that make this statute unique.
JUSTICE SCALIA: What are your second and third? I’m on pins and needles to hear your second (Laughter.)
MR. CLEMENT: Yes, exactly. Well, one is the sheer size. Two is the fact that this statute uniquely is tied to an individual mandate which is decidedly nonvoluntary. And three is the fact that they’ve leveraged the prior participation 23 in the program,
Note to all advocates. Always offer two reasons.