Edwin Kneedler on NFIB v. Sebelius: “That was more pressure than any other.”

September 10th, 2014

I encourage you to read Bob Barnes’s excellent profile of the inestimable Deputy S.G. Edwin Kneedler, who has now served in DOJ for over 40 years. His lineage was remarkable.

Suppose you were looking for a lawyer to argue a case before the Supreme Court and this résumé crossed your desk:

Started legal career after being hired by Antonin Scalia. Worked on briefs and legal strategy with John G. Roberts Jr. Mentored Samuel A. Alito Jr. Served as acting solicitor general for President Obama and helped prepare Elena Kagan for her first court argument.

Oh, and besides working with four Supreme Court justices, has argued 125 cases there, more than any other practicing lawyer.

The only problem with trying to hire Edwin S. Kneedler is that you can’t. He is exclusive to one client: the government of the United States.


In particular, I’ll draw attention to his comments about NIFB v. Sebelius:

The biggest case he participated in, he said, would be the defense of Obama’s Affordable Care Act, which the court mostly upheld on a 5-to-4 opinion by Roberts.

“That was more pressure than any other,” Kneedler said, with the debate “so public and so intense.”

The appeals process dominated a year of his life, and Verrilli said Kneedler’s involvement was crucial to the outcome.

Of the four arguments in NFIB, Verrilli argued three: Tax Anti-Injunction (Day 1), Individual Mandate (Day 2), Medicaid Expansion (Day 3 afternoon). Kneedler argued the severability argument (Day 3 morning).

Remarkable, he is truly apolitical.

Which is not the same as saying Kneedler favored the act. Both Republicans and Democrats who have worked with Kneedler say they have no idea about his political leanings.

“There are not many people you meet in Washington like Ed,” said Verrilli, a Democrat. “Ed doesn’t filter legal questions through a political prism. I don’t know if he’s a liberal or conservative.”

Clement, a Republican, said he agrees. Kneedler’s concern is that a new administration changes policy the way it should — through rule-making and the legislative process — instead of the “back door of simply changing legal opinions.”