What Does Don Verrilli Know About Getting Crucial Conservative Votes in Tough Cases?

Yesterday, I acknowledged that there was a at least a strong element of self-criticism in Lawrence Lessig’s rather remarkable concession that he argued at the Supreme Court assuming a theory of judicial behavior that has been discredited for decades because if theory was true it would make him feel bad about his job.  It would be nice if he didn’t forget what he had learned in his future political endeavors, but hey, it’s something.  As sleepyirv pointed out to us in comments, he seems to have forgotten his bellyflop even in the narrow field of Supreme Court advocacy:

Yet it is a measure of the pervasive partisanship that is Washington today that it doesn’t even occur to Obama’s solicitor general to suggest a politically conservative argument to Chief Justice John Roberts’s Court that, if applied honestly, might well yield a politically liberal result. That may reflect a limit in the imagination of the Obama lawyers, or a simple realism about the ideological rigidity of this Court. Either way, it is astonishing. Rather than advancing the one argument that the five originalists on the Court might be able to hear, the government insists on standing with an argument that all five conservatives on the Court have already rejected. And so the government leads the Court to do what most Americans expect it will do anyway: Confirm an ideology, rather than honestly follow a principle that might well track something other than simple ideology.

You have to love the condescension shown towards the solicitor general — it can’t be that he was aware of Lessig’s arguments and decided against using them, it must have been that using these brilliant arguments didn’t “occur” to him.  This is particularly rich given the implication that Verrilli is unwilling to tailor his arguments to appeal to conservatives on the Court.  Admittedly, at the time of writing Lessig didn’t know about the ACA case argued by Verrilli that resulted in Roberts (joined by Kennedy) dismembering the corpse of Adler and Cannon’s argument and declining to even send the widow a corsage, but he had seen Roberts adopt an out-of-left-field argument brought up by Verrilli at oral arguments to mostly uphold the ACA in the first place. The causal role the oral argument played is unknowable, but I think just a little modesty might be in order here.

Still, Verrilli is capable of screwing up like anyone.  Is there reason to believe he left a winning argument on the table here?  Of course not:

• As sleepyirv, even on its own terms, Lessig’s originalist argument is weak.  The dispute about the definition of “corruption” concerns 20th century judicial doctrine, not the text of the First Amendment.  How the framers and ratifiers of the First Amendment conceived of corruption might be worth noting, but it’s hard to see how it could be dispositive here.

• If I may be permitted to throw some cold water on the whole “liberal originalist” mode of argument, it seems to me that campaign finance law an area in which originalism is particularly useless.  First of all, there was no single “original meaning” of the free speech clause itself in 1789.  Whether the free speech protected by the First Amendment was something like the (very narrow) English common law standard or something more than that and if so how much more was a matter of substantial political contestation at the time.  And even if there was a clearly identifiable consensus on free speech, it wouldn’t help very much as applied to concrete campaign finance cases in 2013, given how radically most of the relevant considerations (the cost of campaigns, the types of media involved, the size of the constituencies legislators represent) have changed in the intervening 225 years.  I think it would be better to say that Roberts’s narrow definition of corruption is wrong because it’s wrong, not because it arguably contradicts something James Madison wrote in the 18th century.

• Of course, whether the argument appeals to me is beside the point; what matters is whether it would appeal to the justices.  But why would we think this?  We can forget Alito, a human manifestation of the most recent Republican Party platform.  Roberts and Kennedy have never shown any particular interest in originalism or any other kind of grand theory.  The two self-described originalists on the Court are hardly consistent about it.  And in First Amendment jurisprudence, neither Scalia nor Thomas has shown any particular interest in historical analysis, apart from some narrow exceptions (such as Thomas and speech in schools) where the history lines up very well with their a priori political views.  Lessig’s belief that originalism will be appealing in this context isn’t based on anything specific about the First Amendment jurisprudence of the justices in question, but just on the idea that if the justices are conservative they must therefore find orignalist arguments appealing regardless of the context, an assumption that is transparently wrong.

• Which brings us to a broader problem — campaign finance is not virgin doctrinal ground, but an area in which the justices have well-established, frequently expressed views.  The idea that Kennedy or Roberts are going to go “Aha! Now that I’ve seen this empirical analysis of how corruption was used by the First Congress I have to admit that my libertarian views are wrong!” is absurd.  I was going to say that this applies the logic of the seminar room to Supreme Court advocacy, although frankly the “this not nearly as clever as I think it is argument will get my colleague to abandon her firmly established view” approach rarely works in the seminar room either.

• Lessig tries to get around this problem by arguing that there’s no necessary contradiction between adopting his approach and the Roberts Court’s prior cases: “Recognizing “dependence corruption” as a kind of corruption that would empower Congress to act would not undermine the holding in Justice Anthony Kennedy’s opinion in Citizens United.”  But this is deeply disingenuous.  As I’ve said before, I think the judgment in Citizens United was right: I don’t think the statute authorized the FEC to suppress the showing of Hillary: the Movie, but if it did then it violated the First Amendment as applied.  But what makes the decision such an intense source of controversy is not the narrow judgment of the case, but Kennedy’s opinion, which went far beyond what was necessary to decide the case at hand.  It’s true that a “dependence corruption” justification would not threaten the outcome of Citizens United, but it would certainly undermine the broader foundations of Kennedy’s opinion, and Kennedy would certainly understand this.

The thing is, one some level it’s clear Lessig understands much of this: “[t]hat may reflect a limit in the imagination of the Obama lawyers, or a simple realism about the ideological rigidity of this Court.”  Again, he seems to think that it’s better to be wrong if being right undermines his choice to devote so much of his career to constitutional grand theory.  I assume the millions of people who benefit from the ACA prefer Verrilli’s approach of trying to appeal to the actually existing Supreme Court rather than the imaginary one that Larry Lessig would find cool.  And it’s a little late in the day to pretend that the most basic insights of legal realism are “astonishing.”