The president [Barak Obama] had been asked some questions by George Stephanopoulos on a news show about whether it was a tax. And he had given an answer that you might read as him saying it wasn't a tax. I think what he said was, "It isn't a tax increase on all Americans."
Donald Verrilli Jr.When we're not a party, we sometimes file as amicus, as friend of the court, 25, 30 times a term, sometimes more. And in each of those cases, we've got to decide what position the government's going to take. And that is the solicitor general's job to make that decision.
Donald Verrilli Jr.I'm representing the United States. And I'm representing the United States, and my office is representing the United States day after day in front of the court. And I think it's the right thing to do, to carry that out with some dignity and some respect for the process and respect for the institution. And so that led me to just, you know, move the dial a little bit in the direction of calmness.
Donald Verrilli Jr.I did think Justice [Antony] Kennedy's opinion on Lawrence was critical to that because it really, what Lawrence in one sense was, of course, about consensual sex being something that the government can't regulate. But really in a more fundamental sense, what it was saying, "Look. Gay people are normal people, and they get to live normal lives. They're not criminals by virtue of the fact of being gay."
Donald Verrilli Jr.Justice [Sonia]Sotomayor said, "Let's talk - you want to talk about the tax power."And I got like a 10-minute run on the tax power. And, boy, was I glad I did because I was able to get across this idea that, yes, this is a narrower ground on which you can affirm it. And I think everybody agrees. I think even the dissenting justices ultimately in the case agreed that, if Congress had expressly called it a tax, it would be indisputably constitutional.
Donald Verrilli Jr.