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The ABA Conference hosted an all-star panel with four Solicitors General: Kenn Star, Drew Days, Ted Olson, and Don Verrilli. Here are a few of the highlights from posts by the ABA Journal and David Lat.

First, on how they reacted to the position.

Don Verrilli was “asked” to be interviewed while he was working  in the WH Counsel Office.

“When the position came open (in 2010 when Elena Kagan left to become a U.S. Supreme Court justice) I was asked if I wanted to be interviewed and it took me about a nanosecond to say yes.”

You may recall that at the time many expected the job to go to Principal Deputy SG Neal Katyal, who ran the office for a year after Kagan’s nomination to the Supreme Court. Katyal resigned the day Verrilli was appointed.

Ken Starr was implored by the Bush Administration to become SG–what was ostensibly a downgrade from his life-tenured position on the D.C. Circuit.

“I cried like a baby when I accepted the job because I loved the court so much,” said the former federal Court of Appeals judge.

David Lat offered this anecdote:

He loved being a judge and he loved life tenure, so he resisted initial approaches from the White House. But when it became clear that the attorney general and the president wanted him specifically as SG and viewed it as a call to serve the country, he acceded.

Drew Days offered this comical exchange between him and President Clinton:

“The president asked me, what was the relationship between the president and the solicitor general? I thought for a minute and I said you are in the Constitution and the solicitor general is not. He laughed and I got the job.”

Olson was a likely nominee due to his work on Bush v. Gore:

For Ted Olson, connections also helped and complicated matters — he was on the White House’s radar screen because he has successfully represented President George W. Bush in Bush v. Gore, but that also made confirmation more challenging because some Democratic senators didn’t like his involvement in that case.

But this made his Senate hearing contentious.

“I barely squeaked by in my confirmation because many of you may know that in the 2000 Bush vs. Gore presidential race, I was representing then-Gov. Bush in that five-week turmoil in Florida that resulted in the Supreme Court ultimately decid[ed] the presidency,”

Has Ted Olson ever used that sort of language before–that Bush v. Gore “decided the presidency”? He’s been hanging out with David Boies for far too long?!

Second, on establishing the position of the United States.

One of the issues I develop in Unprecedented was the difficulty of the SG to establish an argument for NFIB v. Sebelius, that entailed uniting different interests in HHS, Treasury, and the White House. SG Verrilli speaks to this ordeal:

Verrilli said being the government’s advocate at the podium before the Supreme Court is an important but small part of the solicitor general’s job. “The thing that takes a huge amount of my time is being the decision-maker about what will be the position of the United States in a multitude of cases,” he said. “You might think that an administration will have a relatively unified view of what the government position ought to be on any given matter but it is not that way at all because of the institutional structural differences built into the executive branch. What we’re going to say in court requires at the end of the day for the SG to make a decision after all the agencies have weighed in. Then I have to make a decision. There are going to be winners and losers in that process. It’s not fun exactly, but it’s rewarding to get to participate in,” he said.

David Lat added that Verrilli’s time in the White House has made this process easier:

This is an issue that every SG must wrestle with, according to Verrilli, and where exactly the balance is struck will depend upon the individual SG and his or her relationship with the president. Verrilli said that as a former White House lawyer who is a known quantity to the folks at 1600 Pennsylvania Avenue, he has enjoyed a significant amount of discretion: “they’ve left me alone, and I’ve taken advantage of that.” His approach is to identify the two to three cases each Term where he might be taking a surprising position and call the White House to say, “this is what I’m doing” — not to ask permission, but more of a heads up.

However, Ted Olson explained that he often communicated directly with the White House:

All agreed that while the solicitor general works for the attorney general and the president, the office maintains its independence. Starr said during his term, the protocol was that the White House counsel would not call the solicitor general’s office but instead call the attorney general or the deputy attorney general.  But Olson said had different view.

“As the SG you are working for the attorney general and for the president and it never felt to me that I was independent of those constitutional officers in the performance of my duties” Olson said. “It is important to get input from the president in certain kinds of cases. The SG and the attorney general are making law enforcement legal decisions and not the policy decisions except to the extent where there is overlap.”

 

Finally, in a funny anecdote, Ted Olson explained why he continued to attend all arguments where the United States was at the podium:

When he was solicitor general, Ted Olson made a point of going to every argument in which his office made an appearance because he wanted to learn — how best to argue cases, what worked and what didn’t, and what the justices wanted out of advocates. The justices told Olson that they appreciated his attending the arguments — “and I very soon became addicted to it,” he said.

It is a practice that Don Verrilli maintains today. When Verrilli started as SG, Justice Antonin Scalia told him, “Ted used to come to all the arguments — and we appreciated that.” Point taken, Your Honor.

 

At the ABA International Human Rights Award Luncheon, John Paul Stevens (who used to be a Justice) offered a Supreme Court roundup with comments on King v. Burwell, Glossip, Obergefell, and for the umpteenth time, McDonald v. Chicago.

First on King v. Burwell, he calls the Chief’s opinion “excellent,” as it is “strong and cumulative evidence supporting the proposition that his votes as a judge are determined entirely by his understanding of what the law requires rather than being influenced by his views of sound policy.” Stevens explains that the phrase “Established by the state” “first appeared in early drafts of the legislation when its authors thought that the only exchanges to be adopted would be those established by the States.” I’m not sure what he means by this sentence. If anything, antecedent bills by Baucus and others used the language “established by the States” in regimes that would have denied certain benefits to states that didn’t take certain actions–proving that this was an approach Congress had considered before, and it wasn’t some sort of scriveners error.  And then Justice Stevens relies on the long-discarded argument: “the drafters’ failure to remove the term ‘exchange established by the state’ should be viewed as a the equivalent of a scrivener’s error.” This is wrong on so many levels, and not even the Solicitor General advanced this argument. Rather, the government argued that the phrase was a “term of art.” Then JPS goes on his now well-worn rant about how Printz was wrong, and that Congress could have required the states to establish an exchange.

Second, Stevens “welcomed” the Court’s decision in Arizona State Legislature v. Arizona Independent Redistricting Commission, as the dissent’s position would have “been tantamount to granting the State Legislature a permanent license to engage in political gerrymandering.” He writes, “just as it is settled that judges should construe statutes to avoid constitutional issues wherever possible, it seems to me that it was entirely appropriate for the majority in that case to treat the product of a popular initiative as the equivalent of a law enacted by the legislature.” Stevens doesn’t seem to much care what the phrase “Legislature” actually means–the fact that it avoids gerrymandering is enough. JPS further faults Justice Scalia’s “hyperbola” in his dissent, in contrast with the Chief’s who “avoids the use of any disrespectful rhetoric – which is another reason why I admire his work even though I frequently disagree with his views.” (The plural of hyperbole is hyperboles. Hyperbola is a geometric figure. More on JPS’s geometry latter).

Third, Stevens discusses Glossip v. Gross, and in particular Justice Breyer’s “careful[]” dissent, which “prompted an oral response by Justice Scalia, which, I am quite sure, was the first time in the Court’s history that a concurring Justice thought it appropriate to make an oral response to a dissenter’s oral statement.” (I thought it was the first time, so I’ll take this as a confirmation). Stevens hopes that the “risk that juries in death cases will not represent a fair cross section of the community” will “provide the basis for a nation-wide solution that brings the United States to the point that most civilized countries reached long ago.”

Finally, Stevens turns toward Obergefell, “the most significant opinion announced during the Term.” JPS was “[s]urprised by [AMK’s] decision to rely primarily on substantive due process rationale rather than the Equal Protection Clause, but after reflection, I am persuaded that he was wise to do so.” Why? The answer may surprise you, as it conflicts with the overwhelming consensus of the Circuit Court opinions: “the difference between categories of couples capable of producing children and those completely unable to do so surely provides a rational basis for treating the two categories differently.” Yes, the “responsible procreation” defense offers a rational basis to justify traditional marriage laws. Tell that to Judge Posner and all those infertile opposite-sex couples (as Justice Kagan mentioned during arguments in Windsor). In contrast, “the substantive due process doctrine is more appropriate for an all-or-nothing analysis.” Stevens concludes that “the right to marry, like the right to decide whether to have an abortion or the right to control the education of your children, fits squarely within the category of liberty protected by the Due Process Clause of the 14th Amendment.” “Squarely”? JPS really must have struggled with geometry and the square peg/round hole toy as a kid.

Next JPS offers a unifying explanation about Lochner: “Cases overruling Lochner [did not] reject[] the entire doctrine of substantive due process, whereas in fact they merely rejected its application to economic regulation.” This is sophistry. By the time the Court decided Ferguson v. Skrupa, substantive due process was given a complete burial. However, only a few years later, it was disinterred to justify Justice Douglas’s ethereal decision in Griswold (remember the emanations from the penumbras?). The distinction between economic liberty and other types of rights does not find refuge in Footnote Four of Carolene Products, but must be gleaned by the Warren and Burger Court’s partial resuscitation of the doctrine.

Finally, Justice Stevens pivots to his dissent in McDonald v. Chicago, which Justices Ginsburg, Breyer, and Sotomayor couldn’t even stomach.

Indeed, it is ironic that all of today’s dissenters (except Justice Thomas) who accuse the majority of improperly resurrecting Lochner, came much closer to committing that sin themselves when they decided to rely on substantive due process as the basis for their conclusion that the Second Amendment applies to the States. It borders on the absurd to assume that the word liberty does not include one’s right to choose a spouse but does include a right to possess a firearm in one’s home. …

I endorse the Court’s holding that the Due Process Clause of the 14th Amendment protects an individual’s right to choose his or her spouse but I remain unpersuaded that the Clause also protects an individual’s right to use a gun. The dissenters have things backward when they argue that it protects the latter but not the former.

Oh where do I even start. I think Justice Thomas’s concurring opinion was correct, and the Privileges or Immunities Clause was the more historically faithful approach to extend the right to keep and bear arms to the states. I also think Justice Scalia’s concurring opinion, where he basically says “get over it,” is flawed. But the argument Stevens advances is nonsensical. What is the basis of the “right to possess a firearm in one’s home.” The 2nd Amendment that specifically references keeping and bearing arms. The “right to choose your spouse”? That comes from some unenumerated right that emanates from the 14th Amendment. Which of the two is more clearly protected by the Constitution? This isn’t even a close call. Even if you take the position–as JPS did in Heller–that the Second Amendment only protects the militia, which extrapolation is less absurd? The 2nd Amendment to guns, or the 14th Amendment to same-sex marriage. It is Justice Stevens who has things “backward.”

P.S. If this post makes its way back to the Supreme Court, a kind request–please scan the speeches in a way so that I can select the text. Blogging these non-OCRd PDFs is a pain.

I couldn’t recommend enough Bill Kristol’s 90-minute interview with Justice Alito. The interview touches on his path to the Supreme Court (that time when his daughter told him “Andy Card from the White House called”), how cases are decided, why Justice Alito has often dissented in First Amendment cases, why he dissented from the majority’s “post-modern” dissent in Obergefell, and why (alas) he picked the Phillies over the Yankees. The transcript of the interview is here.

One of the more revealing aspects of the discussion focused on how a case goes from arguments to conference to decision, and how far backwards Justice Alito will bend before he fractures and issues dissent.

First, Justice Alito said “in the typical case,” the Justices don’t talk before arguments.

In the typical case, I will not talk to any of my colleagues about the case before we hear the argument.

Importantly, he stresses this is “generally not done,” leaving open the possibility that it is done sometimes.

There’s no rule against doing it, but it’s just generally not done as matter of tradition or practice or efficiency.

But, the clerks do chat:

On the Supreme Court, the law clerks are very free to talk to each other so my law clerks usually have a sense of what the law clerks in the other chambers are thinking about the case but that’s not necessarily the same thing that the Justices are thinking about the case.

Second, Justice Alito describes the conference process:

The procedure at the conference is pretty formal. The Chief Justice will start and he’ll say, “Okay, the first case is Jones v. Smith, and this is what it’s about and this is what I think we should do. I think we should affirm; I think we should reverse.” … We have a rule that nobody can speak a second time until everybody has spoken once. So we make the complete circuit.

This is a point I got wrong in Unprecedented, based on some inaccurate information I received. I wrote that the Chief voted last at conference. This made for a dramatic scene with the Chief’s fluctuating vote in NFIB coming last. Alas, I was incorrect. If the book ever gets to a second printing, I’ll fix it.

Third, Justice Alito stressed the importance of taking good notes at conference:

. So we have to take – we all take notes. And it’s pretty important to take good notes, particularly if you’re going to be assigned the opinion because you need to try to remember exactly what at least four of your colleagues think about the case and if you draft an opinion and you circulate it, you want at least four justices to agree with you or else it’s not going to be the opinion of the Court. It’s important to either have a good memory of what was said or take good notes.

Fourth Justice Alito describes what happens if there is not a unified five-vote bloc:

But in any event we go around the table and once we’ve made the complete circuit, usually we’ll know how the case is going it be decided and the basic rationale of the case. Sometimes after we’ve gone around, well, the worst case in terms of efficiency is where there isn’t a majority for any judgment. There might be three votes to affirm, three votes to vacate, three votes to reverse. So then we have to try to see if there is some position, there’s some judgment that at least five could agree on. That’s pretty infrequent, that happens pretty infrequently.

But more frequently, once you’ve gone around it’s not clear that there is a rationale that five will agree on. There may be, let’s say, six-one to affirm but three-one to do it on one ground and three-one to do it on another ground. So again you have try and find sort of the least-common denominator, something that five would agree on. And then sometimes if particularly, if it’s a more controversial case, someone may want to answer something that was said by someone who spoke later so there may be a little bit of back-and-forth debate but it’s not an open-ended discussion, and it doesn’t go on for a very extended amount of time.

 

Fifth, Justice Alito discusses the phenomenon of equal assignments–which SCOTUS haruspices use to predict the authorship of opinions.

Not unless that’s the Friday at the end of the two-week session. So at the end of two weeks, usually we will have heard 12 cases, and Friday afternoon, an opinion assignment list will come around. So of the 12, we will almost always get at least one, and then three Justices will get two. So at the end of the year, basically, we’ve all received about the same number of opinions.

Sixth, Justice Alito speaks to the “join” process:

And what I hope is that I will very quickly receive eight memos saying, “This is perfect, you know, don’t change a word.” And it doesn’t always work out that way. …

What I will receive is a memo indicating whether that Justice is going to join the opinion, and I may get a memo that says, “I will join if you make this change and this change and this change.” Or “I join your opinion but I suggest that you make certain changes.” That would be leaving it to the discretion of the author. Or I may get a memo saying, “In accordance with my vote at conference, I’m going to dissent.”

Seventh, during conference, the Justices take an “inventory” of circulating cases:

On the Friday conference, one of the things we do is to do an inventory of the cases where the opinions are circulating. So if I would have circulated an opinion, we’ll go through the list and sometimes at that point someone will say, “I was in the majority at conference, but on the vote, but I’m going to wait and see what the dissent says.” So sometimes that will happen.

Eight, Justice Alito speaks to the phenomenon of one Justice flipping a majority opinion–the votes are not final until the opinion is announced.

And occasionally a decision will flip, you know, maybe once a term or so. Something that was five to four one way ends up being five to four the other way. Someone who was in the majority reconsiders after reading the dissent, thinking about the case, and so it’s not the most efficient thing, but it can happen.

I think this year Justice Thomas broke off Justice Scalia’s opinion in Walker v. Sons of Confederate Veterans and made Justice Breyer’s dissent into a majority opinion.

It’s possible a Justice could revoke a “join” just before a decision is to be delivered.

The votes are not final until we go out on the bench to announce the decision. So in theory, on a, let’s say, on a Monday morning when a certain case is ready to be announced someone in the majority could say, “Something came to me over the weekend and I realized my position is wrong and I’m switching my position,” and that’s going to switch the decision.

But that hasn’t happened while Justice Alito was in office.

It hasn’t happened that way, during my time but it could.

Ninth, Justice Alito explains he does not “know of any instance” where the Justices traded votes.

It’s different from what I imagine takes place and is considered to be proper in a legislative body where someone could vote for something that a person doesn’t really believe in in exchange for getting a vote on something else. I don’t know that that’s considered to be unethical behavior by a legislator. …

But on a court, you can’t. You know that’s improper, and I don’t know of any instance where it’s been done. So you can’t trade your vote.

Tenth, Justice Alito talked about how far he was willing to “bend” before breaking off an issuing a dissent:

And I don’t think any of us would actually sign onto something that we don’t believe in. But we are often required to sign on to something that is not exactly what we would prefer. It becomes a hard – one of the hardest things for an appellate judge. It was hard when I started, and it’s still hard sometimes to figure out how far you should bend before you say, “I can’t go any further.” So if someone circulates a majority opinion, and it’s not what you would have written, and you don’t like certain aspects of it, maybe you don’t like the language, how far can you go?

For the purpose of making a majority or for the purpose of just not writing another meaningless separate opinion, how far can you go before you say, “No, I can’t go any further?”

Eleventh, the former Circuit Judge realizes how difficult these fractured opinions are to follow, but insists that at some point, he cannot join an opinion.

It’s a hard line. As a former consumer of Supreme Court opinions when I was on the Court of Appeals what I wanted and what I think all the lower court judges, what all the parties want, the lawyers want, is a pretty clear rule so it’s nice to have a majority opinion. It’s difficult when you have to put together opinions and try to figure out what the holding is.

But on the other hand, sometimes I may get the draft of a majority opinion and I agree with the bottom-line, or it could be a dissent, I agree with the bottom-line and the basic argument, but there may be paragraphs that are based on past decisions from which I’ve dissented. And so it’s kind of hard to, you know, I accept the fact that this case was decided and it’s binding on me, but I still think I was right on that case and it’s hard to sign on to something that is enthusiastic about a position that I thought was incorrect. There are a lot of very hard lines to draw.

What fascinating insights into the opinion-writing process!

Jess Bravin asked Justice Ginsburg about Walker v. Texas Sons of Confederate Veterans. Her response:

“It would have been terrible if the court came out the other way,” Justice Ginsburg said.

Let’s make no mistake what was driving her opinion in that case. It certainly wasn’t the scope of government speech. I can’t imagine a decision about government speech being “terrible” one way or the other, no more than the sign case (Reed v. Gilbert) was terrible. The motivation for this decision by the Texas Department of Motor Vehicles, and the five Justices in the majority, was to stop speech that would offend–the very speech entitled to the greatest protections. Look no further than the Washington Redskins decision from earlier this week, which relied on Walker.

My working thesis is that Justice Scalia lost the majority opinion when Thomas flipped. I can’t fathom why Thomas would assign the majority opinion to Breyer. Couldn’t he, for once, command a 5-4 majority for a First Amendment Opinion?

The Justices recently released their financial disclosures. Last year Justice Breyer made $60,000 and Justice Scalia made $30,000 on book royalties.

How did the Justices with books make out with royalties?

• Justice Scalia made $33,798 from West Services.
• Justice Breyer made $7,214 from Random House and $126 from Kopf.
• Like in 2013, Justice Sotomayor received “no ‘noninvestment income’ in 2014” from her book. But she wrote that the “Knopf Double Day Group, publisher of my memoir “My Beloved World,” disbursed $25,990.00 during 2014 to promote the sale of the memoir.” In 2012, she disclosed a $1,000,000 advance and a separate $925,000 advance. As I speculated last year, she is still paying off the advance, and has not earned any royalties beyond the $2,000,000 paid up front.
• Justice Thomas did not list any royalties for “My Grandfather’s Son.”