In remarks at Washington University in St. Louis, Solicitor General Donald Verrilli offered important insights into how important the SG’s position is in a case.
However, Verrilli added that the cases were joined by one common thread: the U.S. government, represented by the Office of the Solicitor General, participated in all of them. In deciding what position to take on a case—or whether to participate in a case at all—Verrilli said the Solicitor General must keep two considerations in mind: institutional responsibility and historical contingency.
“A great weight of responsibility comes with the knowledge that the Solicitor General’s decisions can make a difference not only in how the Supreme Court decides a case, but on what shape the future may take,” he said.
This is a theme that detractors of the Solicitor General–those who fault him for not making some arguments, but making others–often fail to appreciate. The SG can’t simply take a position to win a specific case. He or she must argue the case with an eye towards what the future may hold.
I discuss this topic in Unprecedented, and my recent article Obamacare & Man at Yale.
Regarding the same-sex marriage cases, Verrili sad:
Likewise, in The United States v. Windsor and Perry v. Hollingsworth, the United States “respected the institutional commitments of the office and took appropriate consideration of historic contingency as it weighed the significance of the future of a decision to act or not to act.” The Supreme Court struck down the Defense of Marriage Act and dismissed Perry on lack of standing, thus affirming a district court’s ruling against California’s Proposition 8 banning same-sex marriage.
Verrilli also noted that it was the SG that developed the “all deliberate speed” standard from Brown v. Board of Education. I did not know this.
The government had “passed a Rubicon.” In 1954, when the court issued the Brown v. Board of Education ruling on school desegregation, the Solicitor General developed the “all deliberate speed formulation” that gave schools time to implement the law. “That judgment reflects the best of the institutional commitments of the office,” Verrilli said. Important legislation followed: the 1964 Civil Rights Act, the Voting Rights Act of 1965, and the Fair Housing Act of 1968.