Orphan Arguments

March 30, 2012

The Patient Protection and Affordable Care Act, more formally known as Pub. L. 111-148 and less formally known as Obamacare, had its day in court this week.  Actually, it was 3 days. The following search on Westlaw.com will retrieve all of this week’s oral arguments concerning the health care law:

Search – da(aft 3/25/2012) & COURT (4 Docs) in SCT-ORALARG

Day 1 – 2012 WL 993811

Day 2 – 2012 WL 1017220

Day 3 -2012 WL 1031485

Day 3 – 2012 WL 1031484


There is a great deal to be said about the legislation and the litigation, and I’m sure some of my colleagues will say a great deal about it.  Personally, I was fascinated by the arguments of Robert Long on the Anti-Injunction Act during the Monday session.  Not the part where Mr. Long actually discussed the anti-injunction act, but the fact that an attorney was allowed to put forth an argument that none of the parties was making.

A little over a year ago, the New York Times ran an article on the court’s practice of appointing counsel to take up ‘orphan arguments,’ legal positions that could be argued but which none of the parties is willing to support.  The article can be found at 2010 WLNR 24688454. Not long after that article, a Note in the Stanford Law Review addressed this same topic, it can be found at 63 Stan. L. Rev. 907.

If you want to see some of the cases where counsel has been appointed to make an argument for the amici, try the following search in the SCT-ORALARG database:

court /3 appoint! /s amic!

I found 14 results, but after Wednesday’s oral arguments are loaded there will be more; Bartow Farr, III spent Wednesday morning arguing the issue of severability in the PPACA litigation.  He is the second court-appointed counsel in that case.