As Obama term winds down, Solicitor General Don Verrilli makes his exit
on Jun 30, 2016 at 11:51 am
With the close of the Supreme Court’s Term, Don Verrilli has concluded his tenure as Solicitor General.
Verrilli has served as the government’s top lawyer at the Court since 2011, arguing a number of landmark cases there. With Verrilli as Solicitor General, the Obama administration fended off challenges to both the Affordable Care Act’s individual mandate and tax credits for Americans who purchase health insurance on an exchange. He also advocated in favor of same-sex marriage, describing it as a fundamental matter of “human dignity.”
While the Obama administration may have succeeded in these matters, it also suffered some significant losses. The Court was not persuaded by Verrilli’s argument in defense of the Voting Rights Act in Shelby County v. Holder, invalidating the formula used to determine which state and local governments must comply with the act’s preclearance requirement. Just last week, the Court divided four to four on whether the executive branch has the authority to adopt a policy deferring the deportation of some undocumented immigrants.
Verrilli may have served during a dramatic — and even turbulent — time, but he characterizes his own approach as tending more toward the restrained. Verrilli sat down with SCOTUSblog on June 24, his final day, to discuss his experience leading the office.
SCOTUSblog: You’ve been in this position for five years — longer than any Solicitor General in recent memory. What do you hope to be remembered for?
VERRILLI: Beyond the cases, I want my legacy to be that I was a good steward of the office and its responsibilities. That I found the office in good shape, and left it in better shape. And that I carried out the responsibilities in the way that preserved the office’s dignity and preserved its role — and did so in a time in which the political climate was so polarized, which presented challenges. Being able to actually carry out the functions of the office in an appropriate way in a highly polarized time is something that I hope I did. If I did that, then I feel really good.
SCOTUSblog: How did the political climate affect the way you approached cases?
VERRILLI: As the intensity of the polarization rose in the political world, I made a deliberate decision that the right thing to do here was to take the temperature down.
I thought that unless I made a conscious effort to do that, our advocacy on behalf of the administration was going to get caught up in that sense of hyper-partisanship, and that the way we carried out our responsibilities was going to start being perceived as part of that hyper-partisanship. I really didn’t want that to happen.
I was also generally advocating on behalf of progressive positions in front of a court where the majority of whom, before Justice Scalia passed away, were conservatives. They might, at least at the outset, have some skepticism of whether we were right. Because that was the situation I was confronting, I thought that I wasn’t going to get very far with a lot of very aggressive, bombastic liberal rhetoric. What I needed to do was make our position seem reasonable — like irresistibly reasonable — so that I could move Justices who might not initially be inclined to go our way to come over and vote with us.
SCOTUSblog: And with Congress, there are times that by representing the United States’ position, you’re representing them, too … and then there are situations like with the Affordable Care Act where you end up on opposite sides. With the same-sex marriage cases, the Obama administration made the decision not to defend the Defense of Marriage Act, and the House of Representatives basically represented itself in trying to preserve the statute. So sometimes you’re fighting for them and sometimes you’re fighting against them. How do you navigate that relationship?
VERRILLI: With Congress, it’s true there have been times in the [United States v.] Windsor case and in DOMA, when of course they came in to defend the constitutionality of DOMA after the president and the attorney general decided they weren’t going to do that. That decision predated my time here. I didn’t participate in it, although I was perfectly comfortable with carrying it out.
It is true that in other cases you have one house of Congress filing an amicus brief against us. But all that does for me is reinforce the need to keep the temperature at the right place and not get caught up in the politicizing of the process. I don’t think it’s the right thing to do, and I don’t think it helps us.
SCOTUSblog: What other statutes did the administration not defend during your tenure?
There have been a few examples of provisions that have been declared unconstitutional that we didn’t defend. And we have to send a letter to Congress when we don’t defend a statute, but they’re all quite low-profile things.
The one thing that bounced up a little above radar is that just recently we declined to defend — and this was in the lower courts — a provision in a statute that was passed in the wake of the Veterans Administration scandals, which gave the head of the VA the authority to fire senior executive service employees — very senior federal employees who would otherwise have tenure protections — and then provided that those firing decisions would be subject to review by an administrative law judge without any review of the administrative law judge’s decision. We concluded that that obviously violated the Appointments Clause to say that an administrative law judge had unreviewable discretion to rule on the decision of a Senate-confirmed person. We could not defend it.
We took some flack for that. You know, some of the Republicans in the House jumped and said,“Look, they won’t even defend this reform of the VA.” That’s the only one that’s been above the radar screen since I’ve been in the job.
And we’ve also defended a number of things that plenty of people in the administration would be happy for us not to defend. A prime example of that is the USAID case from a few years ago, where entities that wanted to receive funding for AIDS work abroad had to sign a pledge that they were against prostitution. There was a First Amendment challenge brought against that. Many, many people in the government thought that that statutory provision was affirmatively harmful to the efforts of dealing with AIDS in the Third Would because you have to deal with prostitutes if you were going to effectively prevent the transmission of AIDS. There were plenty of people in the government who wanted us to just not defend it.
But we thought there were arguments that could be made to defend it, and they were reasonable arguments, and so we did our job and defended it.
SCOTUSblog: What are the reasons for making the transition out of the office now, instead of waiting until a new presidential administration?
Verrilli: This is the normal time for an SG to leave. Paul Clement left in the summer of 2008. Ted Olson left in the summer of 2004. Seth Waxman left in the summer of 2000. And so, it’s the normal time to do it. I think it’s the least disruptive to this office and to the Court.
SCOTUSblog: Can you describe your approach to picking out the government’s position? And should we expect continuity there?
VERRILLI: There’s quite a lot of disagreement often within the executive branch on what to do and what position perhaps they should take. We have a very elaborate process for this, with all kind of written submissions from entities throughout the executive branch. We bring the parties in the cases in to talk to us. We have hours and hours of discussion, and then at the end of that process, the SG’s got to make a decision about what to do.
And in my early years, I tried to find common ground in those situations and find positions that everybody could swallow or agree upon. And what I found over time was that was not the best approach, because all I got was grudging acquiescence within the executive branch. And then when I argued those positions before the Supreme Court, Justices were very unhappy with them because they were these mushy unhelpful things.
So, eventually, I just came around to the idea that I’m just going to decide who’s going to be a winner or a loser in this within the executive branch. That’s a better way to do the job. There’s no magic formula for deciding what the right answer is. The process just needs to be thorough, and fair, and transparent — and perceived to be thorough, and fair, and transparent by the members of the executive branch participating in it. So long as I can tell the Cabinet officer or the agency general counsel what I decided and give a cogent reason why, and that’s the best I could do, and that’s what I should aim for. So, that’s what I did aim for.
SCOTUSblog: That seems like a really distinct lesson learned. Are there other things that over time your thinking changed about?
VERRILLI: This may seem to be at odds with what I said about taking the temperature down, though I don’t think it is ultimately. I think at the outset I took the temperature down a little too far. In that, in my effort to make sure that we were on an even keel and not getting caught up in the partisan spirit of the age, I was probably too careful in that regard.
I came to feel like I was putting us at a little bit of a disadvantage vis-à-vis the very best lawyers, who were writing briefs that were very, very effective rhetorically. So, I thought that in a subset of cases — the really significant, salient cases where there was a big administration policy on the line — that turning the temperature up a little on the rhetorical side I thought was necessary. And I found over time that, at least from where I sit, it did not have an adverse effect on our relationship with the Justices or on the way the office and its work was perceived. I could be wrong on that, but I don’t think so.
SCOTUSblog: Right, you can be forceful while still being respectful.
VERRILLI: Yes. And it’s about more than just that. It’s about to what extent are you using rhetoric versus pure, unadorned, solid legal analysis. The office generally is much more the latter, and so the briefs had a little more rhetorical force to them. It’s about more use of the rhetoric than perhaps was the norm.
SCOTUSblog: Those examples suggest a sort of growing confidence in your and the office’s stature and when you can invest capital.
VERRILLI: That’s a fair perception. I’ve tended to think of it in a more pragmatic, trial-and-error sort of way.
SCOTUSblog: This is an unusual time with eight Justices on the Court. How do you expect the vacancy to affect the transition?
VERRILLI: That’s going to present some real challenges to the office, but not to me because I won’t be there! And the challenges would be the same whether I’m here or not.
But in a funny way, it doesn’t really alter what we do. You know, a lot of folks have asked, “Do you approach advocacy differently with an eight-person Court or a nine-person Court?” I think the answer for us it that it really hasn’t, because you need five votes to win whether there are eight or nine. And of course, it’s true that if you have won below it ties and you’re going to get an affirmance. But we’re not playing for a tie. We’re playing to win. So, we’re continuing to strategize about how to get five votes to win even though it’s only from a pool of eight and not a pool of nine.
SCOTUSblog: Which is one of the reasons why the immigration case that was just decided four to four was a disappointment to you all.
VERRILLI: It was disappointing to me. You know, it’s a provisional decision affirmed by an equally divided Court from a divided court of appeals panel. I think everybody would agree that it’s not ideal for a matter of that consequence to be resolved provisionally like that.
SCOTUSblog: What have been the highs and lows of being in the office?
VERRILLI: I’m a litigator. We are litigators, which means that we care very much about winning, and that we hate losing. And we have high points and low points, and I’ve had high points and low points. But they really do tend to revolve around the outcomes of the cases. And one of the amazing things about having a job during this tenure is that there have been so many cases where there was so much on the line.
Every SG has some cases like that, but there has been an extraordinarily large number of them, and it’s been an incredibly intense experience doing this. So, having the Affordable Care Act upheld in 2012, and then defeating the statutory challenge to the effective operation of the act in 2015. I think those for me were probably the highest of the high points, because I had invested so much personally into the work in those two cases, because I had put so much effort and energy into them, and because it was such an extraordinarily consequential law. And I did feel — perhaps without justification — that the lawyering might have made a difference in those cases. Not so much the oral arguments, but the briefing and how we should argue it — might have made a difference. So, it was a combination of the importance of what was at stake and consequences for the country if we had lost, and the fact that lawyering may have mattered, makes those the most satisfying.
Getting to participate in the marriage equality cases — that trio of cases that came up during my tenure — was an incredible thing. I felt like I was getting to play a role in history, so that was an incredible thing. But I actually think that the lawyering that this office did and that I did in those cases probably mattered a great deal less to the outcome. It might have mattered in some ways, and many people have talked to me in the last couple of year about what it meant to them that the United States of America was on their side in these cases. So it mattered in that sense, I think. But that’s a little different than saying that the lawyering made a difference. I think the lawyering that made a difference was the lawyering that went on for years and years and years all across the country on all kinds of different cases and in all different kinds of different ways that laid the groundwork for the decision. So, by the time it came, it almost seemed inevitable.
I don’t think that my lawyering and this office’s lawyering had that much to do with it. But still, it was an incredible thing to participate in.
SCOTUSblog: Outside of these major decisions, are there other cases that may have gotten less attention where you felt like the lawyering really had a significant impact on the outcome?
VERRILLI: This is a little bit poignant talking about it in view of the fact that we didn’t prevail in the Texas immigration case, but there’s the Arizona immigration case — Arizona v. United States. I mean, it was a high-profile case at the time. It’s not like nobody noticed that case. But I don’t think that the consequences of that were fully appreciated.
In part, it was about the lawyering in the sense that there were two sets of provisions at issue in that case. One was the “show me your papers” [provision], which we did not succeed in having preempted. And then, there was a whole other set of provisions about whether the states had the authority to use their criminal laws against aliens for being undocumented aliens and working as undocumented aliens. And we did prevail on those.
And the vein in which I thought in that case that the lawyering made a difference is in that the “show me your papers” piece of that case was what all the public and the press were focused on as the case worked its way up to the Court. But I think we here understood that that was going to be by far the most challenging part of the case for us and that our odds of winning that part were really pretty low. But the odds of winning the rest of the case if we argued it effectively were pretty high, and it was vitally important to win the rest of the case.
So, shifting the legal focus away from the “show me your papers” provision to the rest of the statute, saying really, the problem here is not so much the “show me your papers” thing but that the states are trying to supplant the federal government’s role in setting immigration policy, and we can’t have fifty different immigration policies.
We worked really hard in the brief to do that, and we worked really hard in the argument to do that. It took me like half the argument. I kept getting pulled back into the “show me your papers” provision, and I kept trying to fight my way to the other stuff. And about halfway through, the Chief was very nice, and he said, why don’t you move on to the other thing now.’
But the reason I think that matters is not only because it mattered in that case, but that series of laws — some of which were even more draconian than Arizona’s — were being enacted in state after state. And the Department of Justice had gone in in all those states, along with private parties, and attacked them. Brought the same kind of preemption arguments against them.
Then, after Arizona came down, all of those other state laws came down like dominoes. We won every single one of those cases in the court of appeals. Basically, there was an incipient anti-immigrant movement there, taking hold in a number of states. There were some states — I think Alabama was one of them — where if you were undocumented, you weren’t allowed to get electricity or gas or water for your house or rent an apartment. I mean it was pretty aggressive stuff
And they all got wiped out. That movement got stopped dead in its tracks.
So, that to me, was a very consequential decision. That piece of it — those consequences— — hasn’t gotten so much attention, but that’s something I feel really good about.
SCOTUSblog: You mentioned being a steward of the Solicitor General’s office. Did the internal mechanics of the office change much during your tenure?
VERRILLI: I don’t think they changed. There’s such a long tradition here of carrying out the responsibilities of this office, and our responsibilities to the Court, as well as our responsibilities to represent the executive branch in a manner that ascribes to certain principles.
One of those principles is an unflinching duty of candor to the Court, so we’ve had a couple of episodes where we’ve made mistakes and had to correct them with the Court.
We’re also going to maintain continuity in the positions the United States has taken unless there’s a very strong reason to change them. We are going to litigate respectfully and without any exaggeration, and certainly with an obligation to disclose adverse factual information.
All of that long pre-dated me, and these principles help the office maintain its credibility. And this credibility is very important over time in the executive branch’s relationship with the Court, because it allows the Court to rely with confidence on what we say. That puts us in a better position to represent the executive branch effectively. So, I think every Solicitor General feels the weight of that. You want to make sure that when you leave, the store of credibility is at least as full as when you entered.
This interview has been edited for concision.