Former Solicitor General Prelogar Speaks at W&L Law School

Former Solicitor General Prelogar Speaks at W&L Law School

Now-Professor Prelogar described her time as solicitor general, her view of current jurisprudence, and advised law students.

(Professor Prelogar (left) responds to a question from Professor Trammell (right). | SOURCE: Author)

“You are charged with zealously advocating for that client’s interests” and “everyone deserves a defense” are two components of the legal ethos ingrained in Professor Elizabeth Prelogar’s head at a young age by her father’s time as a lawyer. Yet Prelogar, the former United States solicitor general under President Biden, spent nearly four years defending not one client but the entire federal government.

Defending the federal government was one of the many challenges of her former role, which Professor Elizabeth Prelogar shared with a packed Millhiser Moot Court Room. Invited to speak at the annual Lewis F. Powell, Jr. Distinguished Lecture, the student-led introduction noted that Prelogar “embodied Justice Powell’s spirit of legal excellence and commitment to the institution of the Supreme Court.”

(W&L Law students introduce Professors Prelogar and Trammel. | SOURCE: Author)

Professor Prelogar, who now teaches at Harvard Law School, was paired during the event with Professor Alan Trammel, Associate Professor of Law at W&L Law School and “one of the leading authorities on universal injunctions,” as well as an expert on the federal judiciary and civil procedure. Professor Trammal moderated the event, asking Prelogar questions and then selecting crowd members for questions.

Trammel started with the basics, asking Prelogar about the duties of the solicitor general, whom he described as “the top government lawyer.” Prelogar, noting that many Americans do not understand the job’s role in the Justice Department, broke the job into three different “bucket[s] of work.”

What the solicitor general “is most well-known for” is “representing the United States in the Supreme Court.” “That includes … participating in virtually all cases,” with the responsibility “to determine the position of the United States in all of those cases,” she said.

Prelogar noted that this responsibility is where the job can often become complicated because many cases present “a real question of what would best advance the interests of the United States.” She noted that this is especially the case when the United States is not a party to the suit but is instead filing an amicus curiae, or friend of the court, brief.

“And so the role also involves being … a mediator … among all the federal agencies and components that have equities and subject matter expertise and might want to weigh in on what … the position of the United States should be,” she explained. Prelogar noted that different sides of the federal government can hold different views on cases. For example, certain areas may wish to support a suit alleging discrimination in hiring practices, but the federal government remains the nation’s largest employer.

A less outward-facing part of the solicitor generalship is “supervising all of the federal government’s appellate litigation strategy.” For example, when federal prosecutors wish to appeal a court ruling to a higher court, the solicitor general’s office solicits opinions from “all relevant components of the federal government” to decide whether to continue the litigation. 

She described this role as “super critical” to “make sure that we’re taking consistent positions across the country.” In answering a later audience question, Prelogar noted that the solicitor general respects the legal opinions of the various federal agencies.

Prelogar’s third “bucket” involved “being a consultant for the client agency and for the United States writ large.”

When asked how much independence the solicitor general enjoys, Prelogar answered, “a great deal.” However, that independence is “just a norm,” as the solicitor general “reports to the attorney general and through him to the president.” However, she described former President Biden and former Attorney General Garland as having respected the office's autonomy. 

Prelogar argued that the best way for her to maintain her autonomy was to be forthright and trust her superiors. Her office’s relationship with the president was often tested, including when Prelogar had to defend the constitutionality of laws that President Biden disagreed with as policy.

Professor Trammel then referenced the solicitor general’s nickname of the “tenth justice of the Supreme Court,” asking Prelogar if she felt that was accurate. Prelogar, after joking that the solicitor general was more like another law clerk than a justice, noted the “very special relationship” between her former office and the Supreme Court.

“The reason for that is we are repeat players in the Court,” allowing the solicitor general “to develop a sense of familiarity with the justices and how they go about thinking about the law and making their decisions.”

Despite that familiarity, Prelogar did not face a court ideologically predisposed to agree with her, saying she “knew walking in that there would be clear headwinds.” To face this challenge, Prelogar often focused on how to avoid losing cases in disastrous manners, saying she would “look for the soft landing”  that would “limit the damage to the interests of the federal government.” There is “always a better way to lose and a worse way,” she said.

(Millhiser Moot Court Room, Sydney Lewis Hall, during Prelogar’s talk. | SOURCE: Author)

Prelogar gave the case Students for Fair Admissions v. Harvard as an example. In this case, despite the Court overturning most race-based affirmative action programs, it made an exception for military academies, something Prelogar specifically asked for during oral argument.  

When asked which current justice reminded her most of Justice Powell, known for being a “consensus builder” while on the Court, Prelogar named Justice Elena Kagan and Chief Justice John Roberts. “They are willing to think harder about a narrower ruling” to gain unanimity among the justices, she argued, something Prelogar views as necessary “particularly today, where there is a lot of public attention” on the Court. 

Prelogar also noted Justice Amy Coney Barrett’s concurrence in Trump v. Anderson. In that case, Barrett agreed that a state cannot disqualify a presidential candidate under the Fourteenth Amendment’s insurrection clause but criticized the Court for not more narrowly deciding the case and avoiding political fallout. 

Prelogar then discussed oral arguments in front of the Supreme Court. She firmly asserted that oral arguments impact the outcome of cases, although briefs are “going to be the most important building block” in a case. “There are times that you can lose a case at oral argument,” she said, although she noted that winning a case at oral argument can be more difficult.

Prelogar also noted the dramatic change in the Supreme Court’s oral arguments, a product of the COVID-19 pandemic. Along with some other former solicitors general, she prefers the new format, arguing it allows for greater time to substantively answer questions from the justices. She also noted that the new format elicited more questions from Justice Clarence Thomas, who once went a decade without asking a question during oral arguments.

Looking ahead, Prelogar gave her opinions on rulings and future cases. Regarding the legality of Trump’s recent firings of executive officials with tenure protections, Prelogar argued the Court may side with his administration.

“Humphrey’s Executor [v. United States] … is on thin ice,” she said, referencing the near-100-year-old case in which the court decided that commissioners at independent agencies had protections against being fired by the president. Prelogar qualified her prediction of Court support for the unitary executive theory. Regarding independent agencies, she doubted that the Court would allow the at-will removal of officials like governors of the Federal Reserve, even if they would advance at-will removal for other officials. 

Discussing cases she had a part in arguing, she doubted there would be massive ramifications for her losses in the Loper Bright and Relentless cases, which overturned Chevron v. NRDC and the Chevron deference.

“I don't think it's going to turn out to be a super big deal,” she said, pointing to the negligible role that the Chevron deference played in statutory interpretation before its overturning. Prelogar noted that Loper Bright “was just an APA [Administrative Procedure Act] decision … not an Article III Constitutional decision,” and therefore did not undermine Congress’s power to delegate decision-making and rule-making authority to federal agencies. 

Prelogar, who revealed that she argued Loper Bright and Relentless while having pneumonia, argued that Loper Bright was a unique case in which a lower court judge firmly disagreed with an agency’s interpretation of a statute yet was forced to defer to the agency’s interpretation given its reasonable nature, thus teeing up the Court to overturn Chevron in totality.

She additionally noted Skidmore v. Swift & Co., a World War II-era case in which the Court established the non-binding Skidmore deference for agency interpretations of statutes. According to Prelogar, the Skidmore deference, “whatever it means, is alive and kicking.”

Toward the end of the event, Prelogar discussed her future. Denying that her life would be “all downhill from here,” she presented a positive outlook on the range of possibilities that a career in law opens. Prelogar, echoing her optimism on the future of the Court, argued that her future in law and those of the law students listening, were bright.