Paul Clement, a former solicitor general under George W. Bush, is representing state attorneys general in the Supreme Court fight against Obama’s health care law—and it’s just one of seven cases he’ll be arguing before the court:
There are two ways to assess a Supreme Court argument. One is to view it as an act of persuasion. You can read Clement’s brief primarily as a letter to Justice Anthony Kennedy, who’ll likely be the deciding vote if the Court overturns Obamacare. Clement quotes Kennedy’s previous opinions throughout his brief, and he leans on broad themes rather than legalistic detail, which is a style that has worked to good effect on the justice in past cases. The other, more cynical way to view a Supreme Court argument is as an act of manipulation—to provide the justices with a plausible rationale for reaching a decision they’re already predisposed to make. If you believe that the Court’s conservative majority is itching to strike down Obamacare, then the task is to launder this decision of partisan motivation. And so Clement argues that there are, in fact, other ways to fix America’s health-care system without an individual mandate; it’s just that Congress chose not to avail itself of those means because they were politically unpopular.