Over the last year, conservative superlawyer Paul Clement has tackled cases involving the Affordable Care Act and the federal defence of Marriage Act.
Now, he’s dipping his toes into another high-profile case. He is arguing in defence of the NFL in a case brought by former NFL players trying to sue the league over concussion-linked injuries.
Both sides were in U.S. District Court in Philadelphia on Tuesday, with NFL players’ lawyer David Frederick arguing that the NFL profited from “glorified” violence that damaged the brains of players. The case involves more than one-third of living, former NFL players — more than 4,000.
Usually, Clement is more used to arguing before the nation’s high court. He has quickly become the Supreme Court’s most visible lawyer. Last year, he argued to kill the Affordable Care Act, and he followed that up with another high-profile case involving Arizona’s controversial immigration law. Just last month, he defended DOMA, the federal law that bars the federal government from recognising same-sex marriage.
The NFL case is sure to be another controversial one in Clement’s docket — it could drag on for several years, depending on appeals. But friends and co-workers say he welcomes tough cases. In 2011, Clement resigned from the firm King & Spalding LLC after it withdrew as counsel for the U.S. House of Representatives in defending DOMA.
“Defending unpopular positions is what lawyers do,” Clement said at the time, according to Bloomberg. “The adversary system of justice depends on it, especially in cases where the passions run high. When it comes to the lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism.”
Clement has a long legal history both in and out of the federal government. He was Solicitor General under President George W. Bush, a position in which he argued and won controversial cases defending the Bush administration’s war on terror and the Partial-Birth Abortion Ban Act.
It was when Clement left that position in 2008, Evan Tager, a partner at Mayer Brown LLP, dubbed him the “LeBron James of law.”
“I knew there would be a massive bidding war and that he would probably break a lot of records in terms of what he could command out of the SG’s office,” Tager said in an interview last year.
Tager first saw Clement’s potential seven years before that bidding war began, noticing a brief Clement had written in the 2001 Cooper Industries v. Leatherman Tool Group, Inc., case, which established the standard of review for Federal Appeals Courts when taking on punitive-damages awards cases.
“I remember thinking, this is a complicated area of law,” Tager said. “There’s a lot of insider baseball here, and I think he’s figured it out. And not a lot of people have.”
But most of the nation came to notice Clement through his brilliant oral argument in last year’s case involving the Affordable Care Act, in which he took apart argument after argument from Solicitor General Donald Verrilli.
In one standout moment, Clement pushed back against Verrilli’s closing argument tying the affordability of health care to individual liberty, responding that Verrilli had a “funny concept of liberty” if he thought it entailed “forcing somebody” to purchase insurance.
“He just totally tore that apart,” said Ilya Shapiro, a senior fellow in constitutional studies at the libertarian Cato Institute. “Paul is just the best Supreme Court lawyer in the country. It doesn’t matter what particular case he’s on.”
Clement’s next big moment will come Wednesday in a case that has been brewing in lower courts for nearly two years. It’s another unpopular case, but that’s the nature of his job.
Viet Dinh, the founding partner of Bancroft who has known Clement since the pair’s days at Harvard Law School, said that mentality applies in all cases, and that Clement shouldn’t be viewed as simply a good orator in front of the Supreme Court.
“Simply pigeonholing him as the country’s greatest advocate is actually an understatement of his ability,” Dinh said in an interview last year.
“He is one of the best strategic thinkers I know beyond the narrow advocacy. The way he approaches the client’s problem, the way he identifies the client’s interests, the way he frames those interests into a litigation posture and the way he carries it out, it really is a soup-to-nuts command of his profession, whatever case he’s arguing.”
Clement put that on display Tuesday, when he argued that teams — not the league — are responsible for player safety under the league’s collective bargaining agreement.
“The one thing constant throughout is these agreements put the primary role and responsibility on some combination of the players themselves, the unions and the clubs,” Clement argued, according to the Associated Press.
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