Solicitor General Verrilli and the art of oral argument

McClatchy Washington BureauMarch 25, 2014 

Solicitor General Donald Verrilli showed again Tuesday that he wants to be eloquent, and frequently can be, when he appears before the Supreme Court.

But that’s not the same as being effective.

Stipulate this: Oral presentations are overrated, for good or for ill. Supreme Court justices will tell you that written briefs are far more important than silver tongues in making a case. And Verrilli’s own verbal stumble during the 2012 health care argument, a case he ended up winning, showed the limited impact oral argument can have.

Still, consider how Verrilli started his 45-minute argument Tuesday in the closely watched contraceptive mandate case. He began with...reciting a nicely worded bit by the late, great Justice Robert Jackson. Verrilli said:

“The touchstone for resolving this case is the principle Justice Jackson articulated in Prince v.

Massachusetts. As he said, ‘Limitations which of necessity bound religious freedom begin operate wherever activities begin to affect or collide with the liberties of others or of the public. Adherence to that principle is what makes possible the harmonious functioning of a society like ours, in which people of every faith live and work side by side.’"

First, just to be clear: the Jackson quote actually ends at “public.” The sentence starting with “adherence” is Verrilli’s gloss. Second, it’s not from the court’s opinion (in a 1944 case involving the application of labor laws to Jehovah’s Witnesses.) So, since Jackson’s words are not binding law, they are meant strictly as a rhetorical flourish.

Problem is, the justices want reasons, and facts, and analytical frameworks, not smooth talk. It doesn’t persuade; indeed, it may put off. Nor is this Verrilli’s first time with a rhetorical show. His conclusion on the second day of the 2012 Affordable Care Act argument was an uninterrupted, nine paragraph exhortation.

Nine uninterrupted paragraphs! The lack of interruption from the justices was not a sign they were wowed by his words. It was a sign they had made up their minds and were beyond persuading.

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