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The Paul Clement Court

Publication Date: 
March 18, 2012
New York
Jason Zengerle

Professor Tom Goldstein is quoted by Jason Zengerle in New York Magazine on Private Attorney Paul Clement and how he has taken the health-care fight from a "conservative dream" into a "very serious threat to undo the president's signature accomplishment."

A little before noon on March 23, 2010, President Obama sat at a desk in the East Room of the White House, where—surrounded by Joe Biden, Nancy Pelosi, and Ted Kennedy’s widow, among others—he signed the Patient Protection and Affordable Care Act into law. It was, as Biden memorably told Obama, "a big fucking deal." Seven minutes later, at the U.S. Courthouse in Pensacola, Florida, thirteen state attorneys general—all but one of them Republicans—filed a lawsuit seeking to overturn Obama­care. It was, as one legal expert told the Pensacola News Journal in the next day's paper, "a political lawsuit [likely to] be dismissed." In fact, most papers on March 24 barely reported on the suit's filing; the New York Times devoted just one sentence to it.

Two years later, that lawsuit—which now includes 26 states, the National Federation of Independent Businesses, and two small-business owners as plaintiffs—sits before the Supreme Court. Next Monday, the Court will begin hearing an extraordinary five and a half hours of oral arguments, held over three days, in The United States Department of Health and Human Services, et al. v. The State of Florida, et al. It is now seen as quite probably the defining case of John Roberts's expected decades-long tenure as chief justice.


... As the Supreme Court lawyer Tom Goldstein puts it, "Paul has turned the health-care fight from kind of a conservative dream that’s untied to reality into a very serious threat to undo the president's signature accomplishment." This alone would be a landmark achievement—and, for most lawyers, would have required their complete attention. But health care is just one of seven cases that Clement will be arguing in front of the Supreme Court this term, a caseload previously unheard of for a private attorney. In fact, since leaving the position of solicitor general under Bush, he has become, in the Obama age, a sort of anti–solicitor general—the go-to lawyer for some of the Republican Party’s most significant, and polarizing, legal causes.


... "He’s touched the third, fourth, fifth, sixth, and seventh rails of liberal-Democratic politics," Tom Goldstein says of Clement’s involvement in the Obamacare, immigration, gay-marriage, gun-rights, and Texas-redistricting cases. "Paul is going to be easy to caricature, incorrectly, as someone with a hard-right agenda."