New Solicitor General, New Positions?

MoFo Perspectives Podcast

25 Jan 2021

In this latest MoFo Perspectives podcast, MoFo appellate co-chairs Deanne Maynard and Joe Palmore speak on why the Biden Administration might change the government’s positions before the Supreme Court—and why it might not.


Speaker: Welcome to MoFo Perspectives, a podcast by Morrison & Foerster, where we share the perspectives of our clients, colleagues, subject matter experts, and lawyers.

Joe Palmore: I’m Joe Palmore. I co-chair the firm’s Appellate and Supreme Court Practice Group, and I am an alum of the Office of the Solicitor General, and I’ve argued 12 cases before the Supreme Court.

Deanne Maynard: I’m Deanne Maynard. I’m Joe’s co-chair of the Appellate and Supreme Court Practice Group at Morrison & Foerster. I’ve argued 14 cases in the United States Supreme Court and many more in the Federal Courts of Appeals. I joined the firm after serving as an assistant to the Solicitor General, including during the changeover period between President Bush and President Obama.

Joe Palmore: Today, Deanne and I are going to be talking about the Office of the Solicitor General, what its role is, and, in particular, something that’s quite salient right now, which is when and under what circumstances will the Solicitor General change the litigating position of the United States before the Supreme Court? I will note that we are recording this on Friday, January 22nd. Right now, we don’t know who the next Solicitor General will be. We do know that Elizabeth Prelogar has been named the acting Solicitor General and then will be the principal deputy in the office. With those preliminaries out of the way, Deanne, why don’t you tell us what the role of the Solicitor General is? What does this person do?

Deanne Maynard: Well, the office Solicitor General was created by statute in 1870, and the Act states that there shall be an officer learned in the law to be called the Solicitor General to assist the Attorney General in the performance of his or her duties. We should note that the office is largely made up of career attorneys. There are only two political appointees in the office, one being the Solicitor General himself or herself who was appointed by the president and then confirmed by the Senate, and then a principal deputy, sometimes called the political deputy, who’s the number two to the Solicitor General and is also appointed, but not confirmed by the Senate. The other 18 or so lawyers in the office are all career lawyers like Joe and I were, and they stay on between administrations or don’t come and go dependent with the administration.

Joe Palmore: Some of those lawyers have been there for decades. They’ve spanned multiple presidents and there’s tremendous depth of institutional memory in that office.

Deanne Maynard: And at bottom, the mission of the Solicitor General’s office is to represent the interests of the United States, mostly before the Supreme Court, although the SG also has a couple other really important functions. The SG’s office briefs in our news cases on behalf of the United States in the Supreme Court. It also files petitions for certiorari when the United States wants to seek review in the Supreme Court, and more often than that, opposes petitions for review when the United States has won in a court of appeals and the other party wants the Supreme Court’s review. The SG also performs a really important function in protecting the United States' interests more broadly nationwide for any appeal across the country, from a district court to the court of appeals, whoever’s representing the United States in whatever court across the country has to have the approval of the Solicitor General in order to appeal. That’s a really important institutional function that the office provides, which is to try to help maintain some uniformity of the United States positions across the country, and also to pick their battles, frankly, have the Solicitor General decide in some cases that maybe this isn’t a good case to push the arguments that the United States had been advancing the district court and to essentially take their lumps in that case and wait to fight the issue another day.

Joe Palmore: That role of the Solicitor General in the lower courts is really important, but today we’re going to now shift and talk just about the role of the Solicitor General and the Supreme Court. The Solicitor General has been called the 10th Justice, and that says a lot about the importance of the role. The nine Justices look to the Solicitor General to be an honest broker, to state the institutional interests of the United States. And they don’t view this person as kind of a normal advocate before the court. They hold the Solicitor General in very high regard, and they have very high standards for the advocacy they expect out of the Solicitor General and out of that office. And, of course, some Solicitor Generals, move from being the 10th Justice to one of the nine. How many have made that transition, Deanne?

Deanne Maynard: Well, at least three, including one of the current Justices, Elena Kagan, for whom Joe and I both worked in the Solicitor General’s Office. She’s now Justice on the Supreme Court. Thurgood Marshall and Robert Jackson were Solicitor General before they were on the Supreme Court. To Joe’s point, in most cases, the institutional interest of the United States is the same across different administrations, but not surprisingly, on some perhaps often more hot-buttoned issues, ideological issues, the new Solicitor General, when they come in in a new administration, like we just had to change over this week, might look back at some positions and think maybe we should change positions. Justice Kagan has spoken about this dynamic publicly once she was a Justice. She’s explained that when she joined the Obama administration and she saw some of the positions they were taking, she was like, really, we’re taking those positions?

Deanne Maynard: And she said that the career lawyers in the office, and most of the lawyers in the office are career lawyers cautioned, then-Solicitor General Kagan that if she was thinking about changing positions, she should think long and hard about it, and then think long and hard about it again, and she says that that was really the right thing to do because what’s at stake is the credibility of the Solicitor General’s Office, which the court puts a lot of stake in, and also for the long-term interest of the United States often remain the same throughout administrations. They try to defend criminal convictions that U.S. attorneys have obtained. They defend statutes that Congress has passed. And so it’s not surprising that the long-term interest of the United States is to maintain the positions they’ve held most of the time, in most cases. And Joe, I think you were in at the fulcrum of this issue at one point when you were in the SG’s office as a career lawyer at the podium. You want to tell folks about what happened there?

Joe Palmore: Yes. I was arguing a relatively obscure Arissa case in 2012, and it did involve a change of position in one of the sub issues in the case position taken by the office was different than a position taken by the government some 15 years before in a court of appeals brief in the fifth circuit, and I’ll just note parenthetically that I think if we hadn’t disclosed that in our brief, no one would’ve even known about it, but the office does feel it has a duty of candor and a duty to note when it is changing position. In the brief, we used a phrase that had been used many times in the office until then, which was some version of ‘upon further reflection, the Solicitor General now thinks X when, before he had thought Y,’ and Chief Justice Roberts made clear during my oral argument that he was not a big fan of this phrase, upon further reflection. He thought it was kind of a dodge, and he said, look, there’s a new administration. This is a new government is in power, and why don’t you just say that? Why don’t you just say we have a new position instead of saying that it’s the product of upon further reflection and--

Deanne Maynard: Didn’t we used to joke that it was really upon further election?

Joe Palmore: Yes. That was the office joke, and that joke isn’t made anymore because that phrase, upon further reflection, is not made anymore because the Chief Justice made clear he didn’t like it. I think I was really just the unlucky assistant at the podium when he was delivering this message. I think there was a larger concern that he perhaps had with what he perceived to be changes of position that the Obama Solicitor General’s Office was taking, and I ended up just being the conduit for that message.

Deanne Maynard: But later on, Don Verrilli, who was the Solicitor General at the time, Justice Scalia express some question about a similar switch, and we have a clip here to play. This is Don Verrilli arguing for the United States and Justice Scalia asking him questions.

Joe Palmore: Yeah, this is a case called Kia Bell vs. Royal Dutch Petroleum, and the details aren’t really important here, but it’s about the scope of U.S.’s court’s ability to entertain lawsuits under the alien tort statute against foreign defendants. Let’s listen to that clip.

Audio Clip: That’s a new position for the state department, isn’t it? It’s a new, and for the United States government, why should we listen to you rather than the Solicitors General who took the opposite position and the position taken by respondents here in other cases, not only in several courts of appeals, but even up here. Well, Justice Scalia in a case like this, when in case is under the alien tort statute, the United States has multiple interests. We certainly have foreign relations interests in avoiding friction with foreign governments. We have interests in avoiding subjecting United States companies’ liability abroad. We also have interests in ensuring that our nation’s foreign relations commitments to the rule of law and human rights are not eroded. I understand that commitment, but it’s my responsibility to balance those sometimes competing interests and make a judgment about what the position of the United States should be, consistent with existing law. It was the responsibility of your predecessors as well, and they took a different position. So, why should we defer to the views of the current administration? Well, because we think they’re persuasive, Your Honor. Oh, okay. Well, your successors may adopt a different view. And I think, I don’t want to put words in his mouth, but Justice Scalia’s point means whatever deference you’re entitled to is compromised by the fact that your predecessors took a different position.

Joe Palmore: Yeah, and that was Chief Justice Roberts joining in there at the end. But I think this discussion is kind of emblematic of the way the Justices view the role of the office and sometimes their dislike of changes of position. And it goes to your point, Deanne, about the deference that’s owed to the Solicitor General’s position. And I think that deference this shows is going to be lessened when it’s a new position.

Deanne Maynard: Right, and I think Don recognizes that at the end where he basically says, well, you should agree with us because essentially we are right. We’re persuasive as opposed to getting deference. And definitely in the cases where the SG has switched positions, I think the court tends to give them much less deference than in cases where the United States has maintained consistent positions throughout or in sort of more to the point, maybe in cases where the Justices receive the United States has less of a direct interest, especially like when it’s weighing in as a [inaudible], in someone else’s case.

Joe Palmore: I think that’s exactly right. Now, of course, it’s not just the Obama administration that ran into this issue with Justices. If you fast forward to 2018, Noel Francisco was President Trump’s Solicitor General. He was at the podium in a case called Janice vs. AFSCME, which involved the first amendment claim and union dues. And again, the details, aren’t important, but there was a telling exchange between Justice Sotomayor and a Solicitor General Francisco, and let’s listen to that one now.

Audio Clip: I don’t understand what you’re arguing. This is such a radical new position on your part.

Audio Clip: I don’t think.

Audio Clip: Mr. General, by the way, how many times this term already have you flipped positions from prior administrations?

Audio Clip: Your Honor, I believe—

Audio Clip: This may be how many.

Audio Clip: Your Honor, I think that we have revised the position in, so far, three cases.

Joe Palmore: I was actually there for that argument. I wasn’t in the courtroom, I was in the lawyer’s lounge where you can—members of the Supreme Court bar and listen to arguments if the courtroom is full, and when Justice Sotomayor asked that question, there was an audible gasp in the room because it was so direct and reflected what seemed to be a clear view on her part that the Trump administration was changing positions too often, but it does seem that that Noel Francisco was ready for that question, right, Deanne? I mean, he knew the answer right away. It was three times, he said at that point, that they had changed position. So he must have been—that must have come up in his moot courts.

Deanne Maynard: Maybe so, or I expect, nodding back to Justice Kagan’s comments, that Noel was well-aware of how many times he had authorized the change in position because that isn’t something that the Solicitor General does lightly. And here we are now, we are into a new administration, and what do we think this administration may do in terms of changing positions?

Joe Palmore: Well, to go back to a point that you made a couple times earlier, I think it’s important for listeners to understand than in the vast majority of cases at the court, there would be no change of position or even consideration of a change of position. Most criminal cases, cases involving, for instance, like monetary liability of the United States. There are cases where the institutional interest is very clear and there isn’t necessarily a political valance to the case, and all those cases will just kind of proceed as they normally would. But there will certainly be a small group of cases in which a change of position would at least be considered. And there, of course, I guess there are various ways that this can happen, Right, Deanne? I mean there—

Deanne Maynard: Yeah. I mean, and I think this Solicitor General’s Office and this, whoever will become this Solicitor General, would much prefer that the executive branch change it through more ordinary course. It could be that some of the executive orders President Biden has already signed will have effect on pending litigation, and then whoever’s representing the United States in those cases would take those orders and explain why they affected the litigation and how, rather than a change in the brief, by the same token, if rules or regulations are changed or rescinded or suspended, then that’s a decision made by effectively the client of the Solicitor General and the Solicitor General, or if it’s in lower courts, you know, whichever lawyers representing the United States can go and explain how that affects the pending case, but there may be cases where done in a brief, right?

Joe Palmore: Right. No, I think you make a great point that the Solicitor General would typically prefer someone else to be the one changing the position, whether it’s an administrative agency or the president. And I think it’s cleaner and the Justices are not likely to be annoyed there because they understand that that’s what happens when there’s a change in government, that policy makers have a right to make policy. And I think you’re also right, though, that there will be a subset of cases where perhaps the office is just addressing a legal question. There’s no underlying regulatory regime or regulation that’s being challenged for instance. And there, the change of position will have to come in a brief or in a letter or in a statement at oral argument, and that’s where it can be complicated, and that’s where that institutional reluctance can come to bear.

Deanne Maynard: And do you have any predictions on any particular case, or we’re just going to be waiting and seeing?

Joe Palmore: Well, one that’s been talked about quite a bit is Texas vs. California, which is the latest challenge to Obamacare. And I’ll just in the interest of full disclosure and note that I filed an Amicus brief on behalf of law professors in that case defending the statute. I will say the timing of that one is a little tricky. That case has already been briefed. It’s already been argued. It was argued back in November. The Justices are presumably very far along in writing their opinion or opinions in that case. It’s clearly a case that would be in the pool of cases that would be right for a change of position. It was a case where the Trump administration took the position that the entire affordable care act should be struck down, and it seems quite obvious that the Biden administration would have a different view on that legal question.

Joe Palmore: Now, given that the case has been briefed and argued, it’s not exactly clear how, or if the Biden administration would want to express that changed view. I think they could perhaps send a letter withdrawing their brief, or I guess they could try to file a new brief. It’s not clear that they would want to do that or that they would think they needed to do that given how the oral argument in that case went, and most observers thought that the Affordable Care Act was going to survive this challenge. They may view themselves as better off just kind of standing down, but we’ll have to see on that one.

Deanne Maynard: Well, I think it will be a really interesting time period here as the Biden administration gets up and rolling, and we will all be watching with all of you who is the new Solicitor General and what he or she decides to do on these issues.

Joe Palmore: Indeed, it’ll be an interesting next few months to watch what happens. This is the end of our MoFo Perspectives episode on the Office of the Solicitor General and changes of position. Once again, I’m Joe Palmore, and I’ve been speaking with Deanne Maynard. Thank you for joining us.

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