On Sept. 4, U.S. Solicitor General Elizabeth B. Prelogar spoke at the Case Western Reserve University School of Law as part of the Sumner Canary Memorial lecture. Her hour-long talk covered a wide range of topics, including the nature of her job, issues facing the Supreme Court and her advice for future lawyers.
Sometimes called the “tenth justice” of the Supreme Court, the solicitor general (SG) is the fourth-highest-ranked position in the Department of Justice and represents the federal government in cases before the Supreme Court. Since her confirmation as the 48th SG on Oct. 28, 2021, Prelogar has argued in over 20 cases before the court, including in recent landmark decisions such as Dobbs v. Jackson Women’s Health Organization and Students for Fair Admissions v. Harvard.
Born in Boise, Idaho, Prelogar majored in English and Russian at Emory University and graduated with a J.D. magna cum laude from Harvard Law School. There, she was an articles editor for the Harvard Law Review and a finalist in the Ames Moot Court Competition. She then clerked for Justices Ruth Bader Ginsburg and Elena Kagan. Prelogar went on to work in private practice at Hogan Lovells LLP and Cooley LLP in Washington. She also served as assistant special counsel on the Robert Mueller special counsel investigation into Russian interference in the 2016 presidential election.
The annual Sumner Canary Memorial lecture has hosted preeminent legal scholars and judges, including six Supreme Court justices. The lectureship was made possible by Nancy Canary, the widow of the late Judge Sumner Canary, who served on the Ohio Court of Appeals for the Eighth District and as U.S. Attorney for the Northern District of Ohio.
Rather than deliver a speech as previous Sumner Canary speakers have done, Prelogar spoke with Professor Jonathan H. Adler in George Gund Hall. Adler first asked Prelogar about the responsibilities of the SG, and she divided her duties into three categories. The most public part of her job “is to manage Supreme Court litigation on behalf of the United States,” and she noted that “the federal government participates in probably over 90% of the cases that the Supreme Court hears each term.” Second, the SG must manage the government’s appellate strategy in the lower courts because it requires her personal authorization to appeal adverse decisions reached by those courts. The final “grab bag” part of her job means that Prelogar is an advisor to the “federal agencies and components of the federal government who are [its] clients.”
Soon after that, Prelogar was asked about how she decided to change the federal government’s position on a variety of issues after becoming acting SG on the first day of the Biden administration. “I took those decisions really seriously because it is not a small thing to change the legal position of the United States,” she said, later adding that “at the same time, there are certain cases where routinely across administrations you come at things with a different jurisprudential philosophy or where there are very relevant factual changes on the ground that affect litigation.”
For example, while the Biden administration’s position on the border wall or the “Remain in Mexico” policy differed from the Trump administration’s, the shift came because of “the very real change in the on-the-ground facts,” not simply a jurisprudential shift. She noted that in other areas of law, such as criminal law, “there’s more consistency in the position of the United States” across administrations because the federal government “tend[s] to have a pretty well-defined set of interests as an entity that prosecutes and enforces federal criminal law.”
Prelogar spoke at length about the issue of legal remedies, which are “all about when you can ask the courts to intervene in the first instance.” She said, “Throughout the course of our nation’s history, states have disagreed with the Federal Government about any number of policies, and yet they have not been able to come to court and ask the judicial branch to resolve those inherently policy based and often political disputes.”
She noted that the U.S. has a system of relief only for affected parties, but because in recent years “lower courts have started entertaining suits by states and finding that states have standing,” this has caused problems for the federal government’s interests. Prelogar said that this means that “one district judge around the nation can decide for the entire country whether some important policy or rule is going to go into effect or whether it’s going to be struck down across the whole country, and it means that the federal government has to run the table because if we win the first case and the second case and the 10th case, but then in the 11th case, the plaintiff gets relief—and it’s nationwide—it effectively overrides the decisions of all of those other courts that came before.”
She went on to argue that the problem of the growing number of cases on the Supreme Court’s shadow docket—also called the emergency docket—have come as a result of the lower courts’ ability to go beyond giving relief only to affected parties. Cases on the shadow docket are decided a few days after an application is filed without oral argument and other SCOTUS procedures, thus hastily circumventing the usual judicial process. She said, “If one court decides to grant a nationwide remedy, then it shuts off further dialog or debate about the issue among the lower courts themselves,” leading to an increasing number of shadow docket cases where the Supreme Court is “being asked to make a preliminary merits determination in a rushed posture.”
Adler later asked her how she argues on behalf of a Democratic administration when six of the nine justices were appointed by a Republican president. “We are very much thinking in every case about how we can craft arguments that get us to five or more votes,” she said. For example, when it comes to the Second Amendment, she explained that “the court has made clear that history and tradition are the guiding principles there, and so we’re not coming into the court with policy arguments.” Her comments make it clear that she believes there is plenty of room to persuade justices with whom she often disagrees; rather than work to “lose best,” she said that “there are any number of cases where I’m thinking hard about ways to limit any damage that occurs or to make sure that the court is aware of the consequences of different ways of resolving a case.”
Regarding how she prepares for oral argument, Prelogar said that her preparation is “very much oriented around thinking hard about questions and then working hard on thinking about [her] answers—not for purposes of trying to memorize or have some set piece that [she] can give—but really for purposes of trying to develop a comfort level with [her] case, a sense of fluency in talking about [her] case, so that [she] can be ready for whatever the court throws at [her].” She added that on the night before an oral argument, she has the same meal with her family and tries out her two-minute introduction to the case in front of her two young boys who then rate her performance from one to 10. The first time they did this, one of her sons who was six or seven years old gave her an 11 out of 10, even while conceding that he “didn’t understand anything”; when asked why he gave such a high rating for an incomprehensible argument, he said, “because we’re a family, and we support each other.”
After advising law students to take opportunities to engage in public speaking and look into moot court programs, Prelogar ended the conversation with advice for her law school self. She believes that she has “benefitted so tremendously” whenever she soaked up lessons “like a sponge” while working at a place with people from whom she thought she could learn; she added that it is really important to work at a place with people who have integrity and whom you respect. She finished by saying, “I think the best advice I ever received was to seize on opportunities to make myself uncomfortable … I feel like every time in my life when I have put myself out there and seized on an opportunity that pushed me outside my comfort zone, it has paid dividends. And so I would look—if I were you—for opportunities to make yourself uncomfortable and to just sit with that and embrace that ultimately as a step to really try to stretch and grow.”