The Limits of Advocacy

The commentariat on today's oral argument in United States v. Windsor is inclined to view DOMA as in deep trouble--whether libertarian, right, left or center. Five justices seemed deeply troubled by the federalism aspects of the statute (Congress, which has no power to define marriage, long a creature of state law) nonetheless refusing to recognize the marriages recognized by some of the several states. Also, the justiciability questions--whether the Federal Government could demand a ruling where it had come to agree with the plaintiff, and whether Congress had a right to defend a statute the Executive confessed to be unconstitutional--were given serious consideration, and seemed to have real traction with several members of the Court. So taken all in all, and recognizing that oral arguments and questions asked at the same are not always indicative of how the Court will rule, I am cautiously optimistic that this unjust and indefensible statute will be overturned, and not before time.

But that's not why people read this blog (to the extent you do, and thanks for that). I'm not a tea leaf reader, and the near unanimity of the commentariat doesn't require me to pretend to be one. So let's talk about something more interesting than speculation: the limit of what good lawyering can do. Because that's what was on display in this argument (audio here). Now, former Solicitor General Paul Clement is not a favorite of mine, but let's be frank; he's a first rate lawyer. So it was fascinating to watch him, again and again, forced to break ground--reluctantly falling back from the positions he wanted to advance, with the Justices repeatedly refuting his contentions. He wasn't the only one, mind you, but it was encouraging to watch this formidable advocate begin to wilt.

This happened on both the justiciability portion of the oral argument, but Clement was especially bloodied up in the merit section. For me, the key exchange was this:

MR. CLEMENT: The other point I would make -- but I also ventually want to get around to the animus point -- but the other point I would make is: When you look at Congress doing something that is unusual, that deviates from the way they -- they have proceeded in the past, you have to ask, Well, was there good reason? And in a sense, you have to understand that, in 1996, something's happening that is, in a sense, forcing Congress to choose between its historic practice of deferring to the States and its historic practice of preferring uniformity.

Up until 1996, it essentially has it both ways: Every State has the traditional definition. Congress knows that's the definition that's embedded in every Federal law. So that's fine. We can defer. Okay. 1996 -­

JUSTICE KAGAN: Well, is what happened in 1996 -- and I'm going to quote from the House Report here -- is that "Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality." Is that what happened in 1996?

MR. CLEMENT: Does the House Report say that? Of course, the House Report says that. And if that's enough to invalidate the statute, then you should invalidate the statute. But that has never been your approach, especially under rational basis or even rational basis-plus, if that is what you are suggesting. This Court, even when it's to find more heightened scrutiny, the O'Brien case we cite, it suggests, Look, we are not going to strike down a statute just because a couple of legislators may have had an improper motive. We're going to look, and under rational basis, we look: Is there any rational basis for the statute? And so, sure, the House Report says some things that we are not -- we've never invoked in trying to defend the statute.
But the House Report says other things, like Congress was trying to promote democratic self-governance. And in a situation where an unelected State judiciary in Hawaii is on the verge of deciding this highly contentious, highly divisive issue for everybody, for the States -- for the other States and for the Federal Government by borrowing principle, it makes sense for Congress -­

JUSTICE KENNEDY: Well, but your statute applies also to States where the voters have decided it.

MR. CLEMENT: That's true. I -- but again, I don't know that that fact alone makes it irrational.

(Tr. pp. 72-75) (emphasis added).

Now, think about this for a minute. Clement has been forced to retreat from his basic contention that the legislative interest Congress sought to serve in enacting DOMA was that of creating "uniformity" as to how federal benefits were distributed among states which have different definitions of marriage. Now, because he's very adroit, he tries to minimize the adverse effect of the House Report, attributing it to "a couple of legislators" as opposed to being, as it in fact is, the formal explanation by the drafters of the meaning and intent of the statute they enacted. But he's taken a big blow--discriminatory animus has been conceded; enough to invalidate the statute under Equal Protection if you apply all but the most lax review, and even then only if you find a rational non-discriminatory basis for the statute. Clement adds another--to encourage democratic self government among the states--only to have Kennedy rip it apart with one line.

So he's down to uniformity again, only Justice Kagan had damaged that pretty lethally by pointing out that the uniformity at issue has historically been letting the states define it, and then Clement was forced again to give ground:

JUSTICE KENNEDY: Well, I think -- I think it is a DOMA problem. The question is whether or not the Federal government, under our federalism scheme, has the authority to regulate marriage.

MR. CLEMENT: And it doesn't have the authority to regulate marriages, as such, but that's not what DOMA does.

Well, it does if, as Justice Ginsburg pointed out to laughter, create two types of marriage, "two kinds of marriage, full marriage and the skim-milk marriage.” In the name of federalism, DOMA dilutes the power of states to define marriage while arrogating to Congress a power to define it which its defense counsel acknowledges it doesn't have.

That he is so formidable an attorney, and yet the foundations of his argument crumbled so completely today just shows that William O. Douglas's remark that oral argument never wins cases but often loses it continues to have validity. And the old lawyer's adage that you are only as good as your case still holds sway.

The case was argued quite ably on all sides (though the Bench clearly does not like Solicitor General Verrilli). But Clement has had a bad day; one attributable to the case , not the lawyer. He did the best he could with what he had. Glad though I am to see his position thoroughly routed, I know how he must feel tonight.