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March 27 2012

Arguing the Affordable Care Act Before the Supreme Court = The Lawyer’s Marathon

posted by Allie


Can you imagine being one of the attorneys arguing the Affordable Care Act before the Supreme Court?  Imagine the stress!  First, the entire world is watching your every move, and thanks to audio recordings, your every “um” and long pause will go down in history.  Second, it’s the Supreme Court, so you’re already probably already red in the face, perhaps slightly blotchy on the neck.  And finally, the Court scheduled the arguments to last 3 days.  That hasn’t happened since the 1960s.  This 3 day argument schedule is the lawyer’s equivalent of a 3 day Olympic contest. 

I remember preparing for my first Moot Court arguments.  I prepared, studied, and practiced, and after my baby 20-minute argument was over (which was heard before a panel of local attorneys, NOT Supreme Court Justices), I was exhausted and glad it was over.  I cannot fathom having to keep up that type of stamina—times a million—for 3 days in front of the Supreme Court.  I wonder if the attorneys have sequestered themselves in a local hotel with zero contact with the outside world.  I mean, no offense to any of the spouses of these attorneys, but can you imagine carrying on a small talk conversation over the phone at the end of your day?  I imagine it would go something like this:

     Attorney:  Hi, [insert term of endearment of your choice]. How was your day?

     Spouse: Stressful!  Traffic was horrible on the way to work.  My boss would not get off my back about this work project, and to top it all off, I blew a tire on the way home! 

     Attorney: Wow, that does sound stressful.  I just finished day 1 of 3 before the Supreme Court, arguing a landmark case before the Supreme Court that could determine the        outcome of health care in this country for the next 100 years. 

I listened to a short clip of the audio recording from day 1 on NPR, and the clip focused on a slip of tongue made by the Solicitor General arguing for the government.  The Solicitor’s argument was that the monetary penalty imposed by the law was not a tax so the court was not prohibited from hearing arguments because the tax had yet to be collected.  When questioned by the Justices, the Solicitor slipped and referred to the penalty as a tax.  Justice Breyer caught the slip and gently questioned whether the Solicitor meant to say “penalty.”  Again, I ask, can you imagine?!  I’ve handled a few minor hearings since becoming an attorney, and after each of my hearings I replay the judge’s every word and question my every move.  If I were corrected by Justice Breyer from the bench---even though the correction was almost done in jest—I would probably die right there on the spot.  

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About the Author: Allie

Allie is a third year law student. She graduated from a small liberal arts college in 2008, married that same summer, and started law school in the fall. Talk about transitions! When she’s not studying, she loves to be with her hubby, Dustin. She also enjoys spending time with her family and friends, reading, cooking, crocheting, gardening, and decorating her home. Her favorite shows are Friends, Fringe, 30 Rock, Modern Family, Project Runway, and Top Chef. She has no idea what area of law she wants to practice in but is most drawn to areas involving torts- she is fluent in Spanish and hopes to incorporate that into her legal career.


  1. Gian said on 8/1/14 at 6:01 PM

    A law student canont provide legal counsel in an official capacity to any person for any reason. There is a loophole however. A person is allowed to represent themself in a court of law, and they are allowed to receive legal advice unofficially from anyone they choose, including a law student. You canont represent them, make official decisions and statements on their behalf, or visit them in an official capacity as their lawyer in their holding cell (this last one only applies to criminal cases where the accused is remanded). You canont sit with them at the defendants bench in a court of law, however you are allowed to assist them in preparing legal documents which they must sign alone, and assist them in building a case including investigating the scene of the crime (after it has been made available to the public) for evidence that could lead to an aquittal, or searching for witnesses, an alibi, or other persons of interest, so far as it does not impede the police investigations in any way. Finally, you may attempt to seek persons or evidence that may disprove the prosecutions evidence regarding your friends motive and/or opportunity to commit the alleged crime, civil or criminal.If your friend is the plaintiff, he or she has the burdon of proof, which means you and your friend will require not only the evidence that proves you case as legit, but also proof that the defence’s case is somehow false, misleading, or illegitimate. Without both, the defence may win due to the assumption of innocence.

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