Farewell to Solicitor General Verrilli, and Preview from #Unraveled

June 3rd, 2016

Donald Verrilli was one of the most consequential Solicitors General of all time. I’ve had the opportunity to cover his work very carefully over the course of four Obamacare decisions in five years (NFIB, Hobby Lobby, Little Sisters, and Zubik). I offer some quotes about Verrilli in Modern Healthcare.

I wrote a chapter about the outgoing Solicitor General in my forthcoming book, Unraveled: Obamacare, Religious Liberty, and Executive Power. Here is a sample:

Verrilli holds a unique place of regard and trust within the Obama administration, and among the Justices. He began his government service in the White House Counsel’s office. It was not the most glamorous job for someone who had argued thirteen cases before the Supreme Court, but one that allowed him to get to know the president and to earn his trust. In 2010, when Solicitor General Elena Kagan was elevated to the Supreme Court, Verrilli was asked to interview to become the government’s top advocate. Verrilli recalled that “it took me about a nanosecond to say yes.” He was selected by the president over then-Principal Deputy Solicitor General Neal Katyal, who ran the office for a year after Kagan’s nomination. Katyal submitted his resignation letter the day after Verrilli was sworn into office.

Early during his tenure, Verrilli received criticisms from other progressives for his reserved demeanor. They wanted more fire and brimstone, I learned. But Verrilli made the decision that this was not the right thing to carry out the responsibilities of the office. While in charge, Verrilli has preached that the right way to do the job is to take the temperature down as much as possible, and always operate in a manner that demonstrates profound respect for the members of the Court as an institution and for the legitimacy of process. This is especially true during a time where there is such a stark conflict between the Supreme Court, the executive branch, and Congress. The solicitor general personally tried to do everything he could by word and deed to send the message that this is not a political process, this is a judicial process. And over the previous four years, that message has resonated and calmed down more people on the left. Further, Verrilli communicated to his office that as a pragmatic matter, the fire and brimstone approach was a very poor way to pick up the fifth vote in cases. As a result, the Office believes that it has steadfastly built up some credibility with the Court by following this approach.

At an American Bar Association discussion with other Solicitors General, Verrilli side the White House has given him breathing room.“[T]hey’ve left me alone, and I’ve taken advantage of that.” He would always, however, identify two or three cases of the term where his position might surprise the administration, so he would call the White House and say, “This is what I’m doing.” He was not to asking for permission, but rather giving them a heads-up.

The solicitor general recognized that he arrived at the office at a momentous time. In remarks in his hometown of Wilton, CT, Verrilli acknowledged that he had a higher profile than did his predecessors. “We’re in a very unusual place in history,” he said. “It is not usual for so many high-profile cases to come before the Supreme Court in a short span of time.” He would argue four Obamacare cases in the span of five years. Verrilli added, “We’re at a time when a majority of the Supreme Court has a strong ideological perspective different from the president. Aside from the New Deal, this is probably the greatest amount of friction between the executive and judicial branches.” He viewed it as his personal “responsibility to lead the representation of the United States in these matters of real historical importance.”

On June 11, former Attorney General Eric Holder spoke to the American Constitution Society, a group of progressive legal scholars, at the Capitol Hilton. (Coincidentally that evening, one mile away, the Competitive Enterprise Institute held their annual gala, where they toasted to success in King v. Burwell.) During his remarks, Holder praised Verrilli. He said that usually, “Solicitors general are extremely guarded in their independence within the Department [of Justice], but he’s not necessarily that guy.” Rather, Verrilli was “a very collaborative person” within the Obama administration, and would always share with others, “This is the way I think we want to go with this argument.” Holder added that he “bounces things off of people. He is a good friend and a progressive.” The former attorney general concluded with a smile, “I think he is going to be seen as an extremely consequential Solicitor General, I think one of our greatest Solicitors General.”