This colloquy in Kiobel between the Solicitor General and Justice Scalia is fascinating. Scalia asks the SG point blank why the Court should listen to the Obama Administration’s position that contradicts with the position of previous Administrations. The SG gives a deep discourse on the role of the SG of balancing the government’s many interests.

JUSTICE SCALIA: General Verrilli, the -­ that’s — that is a new position for the — for the State Department, isn’t it?

GENERAL VERRILLI: It’s a new -­

JUSTICE SCALIA: And for — and for the United States Government? Why should — 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.

GENERAL VERRILLI: Well, Justice Scalia, in a case like this one, in cases 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 to 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.

JUSTICE SCALIA: I understand that, but -­

GENERAL VERRILLI: 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.

In other words, I’m the SG, and that’s what I said.

JUSTICE SCALIA: It — it was -­

GENERAL VERRILLI: And we have done so.

But Scalia is not done. He asks the question again, more pointedly. This very much echoes his dissent at the end of the term in Arizona v. United States where he attacked the Obama Administration’s position concerning the enforcement of immigration laws.

JUSTICE SCALIA: — it was the responsibility of your predecessors as well, and they took a different position. So, you know, why — why should we defer to the views of — of the current administration?

GENERAL VERRILLI: Well, because we think they are persuasive, Your Honor.

JUSTICE SCALIA: Oh, okay.

Burn. No “laughter” line there. And not a particularly persuasive answer from the SG. I’ll listen to the oral argument to see if the moment was a bit tense.

CJ Roberts continues the point, but states it more umpire-like.

CHIEF JUSTICE ROBERTS: 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 are entitled to is compromised by the fact that your predecessors took a different position.

GENERAL VERRILLI: So, Mr. Chief Justice, let me be clear: In this case our position is that the Court ought not recognize a cause of action.

In the past I have wondered about what deference is owed to the government’s assertion of its best interests in the context of constitutional rights. Last term in United States v. Alvarez, the government asserted that it could not build a database to house the recipients of medals of honor, and this justified their policy of criminalizing stolen valor. In the opinion, Justice Kennedy said that they should build the database, as a significantly-less restrictive means to combat the false speech. A few months after the opinion, the government started building that database.  It seems to be online now at valor.defense.gov, and lists the recipients of the Medal of Honor and service crosses.

What deference is owed to the Solicitor General’s position, when it changes and fluctuates from one administration to the next? This question is certainly one of a political nature, and is more pressing in the matters of foreign affairs, than in domestic affairs (such as the Alvarez case). But, I think Scalia is on to something.

Scalia later asks the SG further about determining what foreign policy interests of the US are:

JUSTICE SCALIA: But we don’t — we are not very good at figuring out the foreign policy interests of the United States. And, you know, in the past we have tried to get out from under our prior case law in the sovereign immunity area of asking the State Department. And the State Department would come in here: This is good; this is bad. We abandoned all that in the sovereign immunity field. Why should we walk back into it here? Or do you intend to have us make these foreign policy decisions?

GENERAL VERRILLI: Congress can always act in this area, Justice Scalia.

JUSTICE SCALIA: No, but assuming Congress doesn’t act. Why should — you know, you want us to listen to the State Department case by case. Is that –