Is Paul Clement Over the Supreme Court Jitters? Probably
By David Stout | October 27, 2021 11:58 am

Paul D. Clement, former Solicitor General of the United States, is in the stratosphere of the legal world, having argued more cases before the U.S. Supreme Court since 2000 (54, with another set for December) than any other lawyer, according to Kevin Sack’s article in The New York Times.

So, what are the chances that Clement will be before the justices next year and beyond? Oh, pretty good, considering that he’s deeply involved in the legal battle over President Barack Obama’s health care law, Congress’s prohibition against interstate recognition of same-sex marriage and Arizona’s tough law against illegal immigration, to mention just a few of Clement’s high-profile cases.

As for the battle over health care, The Times observes that “it seems increasingly likely that it will be Mr. Clement who argues, in the thick of the 2012 campaign, that President Obama’s signature domestic achievement is unconstitutional.”

That seems to be a fairly safe prediction since, as The Times notes, in August Clement and his co-counsel, Michael A. Carvin, won a ruling in the U.S. Court of Appeals for the 11th Circuit, in Atlanta, that would invalidate the act’s keystone provision, which would require most Americans to obtain medical insurance, starting in 2014.

The 11th Circuit ruling contradicted one from the 6th Circuit, based in Cincinnati, a confluence of events that prompted this observation from Clement:

“I do think there’s a good chance that the court will take the 11th Circuit case. It may take other cases as well. But in the 11th Circuit case you’ve got a statute of Congress struck down as unconstitutional, in a way that creates a circuit split, and the federal government is petitioning. I’m not sure there’s ever been a case that had those three things going for it that wasn’t granted.”

That cautious, well reasoned statement was what one could expect from Clement for public consumption. But in his lawyer’s heart of hearts, he has to be certain that the high court will take the health care case. With a circuit split on such a momentous issue, how could it not take it?

The Supreme Court offers advice to help lawyers overcome the jitters as they appear before the justices, from what to wear (“conservative business dress in traditional dark colors, e.g., navy blue or charcoal gray”) and what not to do: attempts at humor are not appropriate. (Oh, you can keep the quill pen on the table; it’s your souvenir from having appeared before the highest court in the land.)

Clement already dresses conservatively, at least in public. And, while he used to clerk for Justice Antonin Scalia, you can bet a thousand dollars (Clement’s hourly fee) that he won’t become inappropriately familiar, as in, “Hey, Nino! How’s it going, big fella? Been to the opera lately?”

Clement may not set a record for Supreme Court appearances. The mark belongs to the 19th century advocate Walter Jones, with 317, The Times said. But then, Clement is only 45.

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