Litigator of the Week: Paul Clement of Bancroft

, The Litigation Daily

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Paul Clement
Paul Clement

After striking out in the two most high-profile U.S. Supreme Court cases of 2012 and 2013, this term Paul Clement reminded his fans in politics and big business why they keep coming back. In the span of less than a week, the Bancroft partner and former U.S. solicitor general unraveled the Affordable Care Act's contraceptive mandate and derailed a threat to the broadcast and cable TV industries.

In the process, Clement made some new enemies too. His June 30 victory in Burwell v. Hobby Lobby Stores enraged critics who say the ruling imperils contraceptive health care and extends dangerous new rights to corporations. In American Broadcasting Companies v. Aereo, Clement abruptly shut down a much-hyped startup's novel strategy for delivering online television, leaving cable cord-cutters gnashing their teeth.

In the Hobby Lobby case, the justices voted 5-4 to strike down regulations promulgated under the ACA that required companies to provide health insurance to female employees that covers the cost of the morning-after pill and intrauterine devices. Siding with Clement's arguments on behalf of Hobby Lobby and other religiously affiliated corporations, the high court ruled that the ACA's contraceptive mandate runs afoul of the Religious Freedom Restoration Act, which states that, with a few exceptions, the U.S. government "shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability."

To reach its holding that Hobby Lobby is exempt, the high court's conservative wing first determined that closely held corporations are equivalent to people for RFRA purposes. The majority also accepted Hobby Lobby's assertion that the mere act of providing insurance for some forms of contraception is a "substantial burden" on its leadership's opposition to abortion—a point of major contention.

The court's ruling was hailed by some as a brave nod to religious liberty. It's also been called a bizarre departure from settled law that shifts contraception costs onto the public, insurers and other companies. In her dissenting opinion, Justice Ruth Bader Ginsburg wrote that the court had "ventured into a minefield." Corporations now have a template for opting out of laws incompatible with their religious beliefs, Ginsburg prophesied.

Clement told us Ginsburg may be overstating the majority decision's future impact. "I don't want to minimize the decision's importance, but I'm in the camp that doesn't think we'll see a flood of claims," he said. "RFRA has long applied to nonprofits that could have brought a lot of claims, but those claims never materialized." (After we spoke to Clement on Thursday, the court granted a controversial injunction to Wheaton College in an early test of the Hobby Lobby ruling's implications.)

The decision caps one of Clement's best Supreme Court terms in years. In 2012, he emerged the loser in the marathon oral arguments over the ACA's constitutionality. In 2013, his defense of the Defense of Marriage Act got slapped down in a 5-4 decision. This year, on the other hand, he's won four of the five cases he's argued. He failed to extinguish claims that Chadbourne & Parke facilitated a Ponzi scheme, but he won an unusual pro bono criminal case for a client who was unconstitutionally prosecuted under a chemical weapons treaty for an amateurish attempt to poison her husband's lover. He also scored a 9-0 win for Delta Airlines Inc. in in Northwest v. Ginsberg, persuading the court that the Airline Deregulation Act of 1978 preempts claims by a man who was expelled from a frequent flyer program.

On June 25, Clement prevailed in his other blockbuster case of the term, convincing six justices to rule that Aereo Inc.'s unique business model—using tiny antennas to stream broadcast television to subscribers, all without paying a cent in retransmission fees to networks—constitutes copyright infringement.

Three days later, Aereo announced it would suspend its operations.

Clement told us he's gotten unsolicited emails criticizing him for arguing both Hobby Lobby and Aereo. "Given the high-profile nature of Hobby Lobby, I expected that," Clement said, "With Aereo, it was more of a surprise."

As you'd imagine, the occasional hate mail doesn't dampen Clement's enthusiasm for his work. "It's a privilege to argue before the Supreme Court," he said.

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