Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: We'll hear argument this morning in case twenty two to
Speaker 2: fifty eight United States versus Texas. General preliguard, mister Chief Justice,
Speaker 2: and may it please the Court. There are more than
Speaker 2: eleven million removable non citizens in this country and DHS
Speaker 2: has about six thousand interior enforcement officers. To focus the
Speaker 2: agency's limited resources on threats to public safety, national security,
Speaker 2: and border security, DHS adopted enforcement priorities, but the district
Speaker 2: Court issued a sweeping ruling vacating the guidelines nationwide. This
Speaker 2: court should reverse.
Speaker 1: And the court did reverse, allowing the Biden administration to
Speaker 1: shift the government's immigration enforcement priorities. It was one of
Speaker 1: the eight cases that Solicitor General Elizabeth Prelager argued at
Speaker 1: the Supreme Court last term, trying to convince at least
Speaker 1: five of the nine justices to sode with the government,
Speaker 1: a task that's gotten tougher with a conservative led court
Speaker 1: less inclined to sod with the Biden administration and willing
Speaker 1: to overturn president. But in the case of United States
Speaker 1: versus Texas, pre Lager managed to convince eight of the
Speaker 1: nine justices joining me is Lydia Wheeler, Bloomberg Law Senior reporter.
Speaker 1: Let's start on a personal note. Lawyers are often creatures
Speaker 1: of habit with rituals before trials or arguments, and pre
Speaker 1: Lager has a breakfast ritual.
Speaker 3: So Supreme Court argument days always start out the same.
Speaker 3: For the blister General, Elizabeth Prelagger, she eats five or
Speaker 3: six bananas, if you can believe it, in the morning
Speaker 3: for breakfast. She said this while she was speaking recently
Speaker 3: in May, she gave a public appearance at a Circuit
Speaker 3: Court conference, and she says that it is a really good
Speaker 3: breakfast to calm your nerves. From what I've heard from
Speaker 3: others is there's apparently some natural beta blockers in bananas
Speaker 3: that help with anxiety and nervous So that's her routine.
Speaker 1: So the introduction is very short before they start hammering
Speaker 1: you with questions. And she tries that out on her
Speaker 1: preteen sons.
Speaker 3: Yeah, that's right. So they only get a couple of
Speaker 3: minutes to kind of kick off their arguments uninterrupted, you know,
Speaker 3: before the justices start jumping in with question when you're
Speaker 3: arguing before the court. So the splitter General said that
Speaker 3: she in preparing for her argument. The day before the argument,
Speaker 3: she tries to cut her day off kind of at
Speaker 3: a normal business hour and go home and have dinner
Speaker 3: with her family. And then when dinner's done, she said,
Speaker 3: she practices her opening arguments in front of her sons,
Speaker 3: who at the time in May, we're nine and twelve.
Speaker 3: And then they rate her. She said, you know, just
Speaker 3: go one to ten on how well she's done. And
Speaker 3: so she doesn't always get a ten. I think, she said,
Speaker 3: like the last time they raid her, she got a seven.
Speaker 1: Well, they're pretty good if they're understanding those at that age.
Speaker 1: So for those who may not be familiar with the
Speaker 1: office of the solicitor General, tell us why the solicitor
Speaker 1: general is sometimes referred to as the tenth justice.
Speaker 3: Right, So, the solicitor General's job is to be the
Speaker 3: one who represents the federal government and court at the
Speaker 3: Supreme Court specifically, so that is the person who's defending
Speaker 3: the administration against challenges to their policies. They also jump
Speaker 3: in kind of to other arguments. Sometimes they're asked by
Speaker 3: the court kind of what are their views on the
Speaker 3: challenge and that they may not be involved in, and
Speaker 3: so they're seen as being kind of above the fray,
Speaker 3: above the political partisanship, and so that's why they're often
Speaker 3: referred to as the tenth Justice. And that makes the
Speaker 3: job pretty difficult, right, because you have to think about
Speaker 3: your objectives in the immediate but also the government's long
Speaker 3: term interest.
Speaker 1: This court is very conservative, as a super conservative majority.
Speaker 1: Does that make her job more difficult when she's advocating
Speaker 1: for the Biden administration?
Speaker 3: Absolutely. You know, my colleague Kimberly Robinson and I chatted
Speaker 3: with people who have held this post before, and we
Speaker 3: chatted with people who have worked for and with this
Speaker 3: lister General, and they all have agreed that this is
Speaker 3: a difficult job that's gotten even tougher with a course
Speaker 3: that's dominated six to three by conservatives. And these are
Speaker 3: conservatives who have not only shown us that they're willing
Speaker 3: to overturn Supreme Court precedent, but also these are conservatives
Speaker 3: who seem deeply skeptical of what they view as the
Speaker 3: administration's aggressive use of executive power when there is an
Speaker 3: express authorization from Congress to take certain actions.
Speaker 1: And she can't make inconsistent arguments or burn bridges because
Speaker 1: she knows she'll be back again arguing before them.
Speaker 3: That's right. That's what makes this job kind of tough, right,
Speaker 3: is that she has to be strategic and find the
Speaker 3: winning arguments that are going to you know, maybe squeak
Speaker 3: out a win where she can without kind of creating
Speaker 3: roadblocks for the government in the future. You know, one
Speaker 3: argument that they might want to put forward and to
Speaker 3: win one case might not work later on, or you know,
Speaker 3: might come back to bite them. So she has to
Speaker 3: be very careful all about the arguments that she's presenting.
Speaker 3: And you know, surprisingly, despite all the challenges that she's facing,
Speaker 3: she was able to sweak out some surprising victories this term.
Speaker 3: You know, she ended the court with a foreign four record.
Speaker 1: I was looking at that foreign four record. How do
Speaker 1: people view that? Because you know, it's a draw.
Speaker 3: I mean, I think that some people thought that it
Speaker 3: was better than what they had anticipated. But you know,
Speaker 3: some legal scholars that I spoke with said that that's
Speaker 3: really indicative of how people view the court. You know,
Speaker 3: given the conservative makeup, is that people think that if, oh,
Speaker 3: the Biden administration's attorneys before the court, they're never going
Speaker 3: to win. Right. Well, Elizabeth Prelauger showed us that that's
Speaker 3: not always the case, you know. And then there were
Speaker 3: cases where although they look like it's a loss to
Speaker 3: her and we count them as a loss, she was
Speaker 3: able to kind of stop the court from going farther
Speaker 3: than it could have. And I think that that really
Speaker 3: speaks to kind of how talented she is in this role.
Speaker 3: We heard from people who have worked with her work
Speaker 3: for her, who just say that in an office where
Speaker 3: there's exemplary attorneys, that Elizabeth Prelager is kind of a
Speaker 3: star amongst ours.
Speaker 1: So she lost some big cases, like affirmative action in
Speaker 1: Biden's student loan program, but then again she won some
Speaker 1: big cases.
Speaker 3: That's right. You know, the court sided with her in
Speaker 3: rejecting a Republican backed effort to give state legislatures and
Speaker 3: here exclusive authority to step federal election rules. You know,
Speaker 3: that case was known as Moore versus Harper, and court
Speaker 3: watchers were really worried about it because it had the
Speaker 3: potential to really kind of wreck havoc on federal election
Speaker 3: rules and really changed the twenty twenty four election results.
Speaker 3: And then there was another case where you know, she
Speaker 3: lost ultimately in fighting for President Biden's student loan forgiveness plan.
Speaker 3: But you'll remember that there were two cases against that,
Speaker 3: and she convinced the court to toss out one of
Speaker 3: those challenges. But that was technically a win. That was
Speaker 3: a challenge that student loan borrowers had brought against the plan,
Speaker 3: and she had argued that they didn't have the required
Speaker 3: in injury to bring their lawsuit in court, and the
Speaker 3: court unanimously agreed with her on that one. There are
Speaker 3: other wins too, you know, she scored victories when the
Speaker 3: court let the Biden administration shift its immigration policies, and
Speaker 3: also when it upheld a lower court's decision that requires
Speaker 3: Alabama to draw a second majority black congressional district. So
Speaker 3: that was a voting rights case that really threatened Voting
Speaker 3: Rights Act that she was able to win. There.
Speaker 1: Tough job, It's an uphill battle every time.
Speaker 3: Yeah, let's talk.
Speaker 1: About her background. I was surprised to learn she has
Speaker 1: a master's degree in creative writing, which may be helpful
Speaker 1: in some of these cases.
Speaker 3: But I think it is you know, a lot of
Speaker 3: people spoke to the fact that she is a really
Speaker 3: talented writer here. You know, when she spoke at that
Speaker 3: conference in May and Philadelphia, as she actually said she
Speaker 3: thought she was going to go into journalism. That was
Speaker 3: a career path that she thought that she was headed for.
Speaker 3: Before Harvard, she.
Speaker 1: Clerk for both the late Justice Ruth Bader Ginsburg and
Speaker 1: Justice Elena Kagan, and they said she was one of
Speaker 1: the best law clerks had.
Speaker 3: Yeah, that's right. So she had the rarity where she
Speaker 3: clerked for not only one, but two Supreme Court justices.
Speaker 3: She also clerked for Merrik Garland, who was at the
Speaker 3: time a judge on the DC Circuit Court of Appeals.
Speaker 3: And when she was applying for her role in this
Speaker 3: Blister General's office, Donald Verilli, who also served as the
Speaker 3: Blister General, you know, he hired her to that office
Speaker 3: in an assistant capacity. And he said that he actually
Speaker 3: got phone calls from both of the justices, both Ginsburg
Speaker 3: and Kagan, called him and said, you know, hey, you
Speaker 3: have to hire her. You couldn't possibly do any better.
Speaker 3: She's one of the best law clerks that we've ever had.
Speaker 3: And you know, I spoke with another attorney who also
Speaker 3: had hired Elizabeth Prelagger in private practice, and he said
Speaker 3: that he had also received a phone call from Justice Ginsberg,
Speaker 3: who at the time had said that Elizabeth Prelagger was
Speaker 3: the best law that she had ever had in I
Speaker 3: think some thirty years.
Speaker 1: Hi praise you write that the same word was used
Speaker 1: over and over to describe her. Unflappable.
Speaker 3: Yeah. Absolutely. An interview after interview after interview that we
Speaker 3: did to learn about her and her record and what
Speaker 3: she's like, the same word kept coming up time and again.
Speaker 3: And you know, people say that she's just someone who's
Speaker 3: kind of unshaken. You know, she has an incredible talent
Speaker 3: to answer the justices questions and to go before a
Speaker 3: course that's sometimes seen as pretty hostile, you know, to
Speaker 3: the positions that she's putting forth, and that she's just
Speaker 3: completely unshaken. You know, I chatted with this woman who
Speaker 3: worked as a Bristow fellow in the office of Splitter
Speaker 3: General and she said that, you know, she worked under
Speaker 3: Elizabeth Prelager and said that she never saw her get stressed.
Speaker 3: You know, everybody gets stressed out and gosh, the Blister
Speaker 3: General's job is so stressful. But you know, she said
Speaker 3: that Elizabeth Prelober is very good at not showing that
Speaker 3: and also not letting that stress trickle down to the
Speaker 3: staff below her.
Speaker 1: I hadn't realized this, but when she started as Solicitor
Speaker 1: General last term, her first challenge was the abortion arguments,
Speaker 1: which you know, we know were the most high profile
Speaker 1: of that term and perhaps the most high profile of
Speaker 1: many terms.
Speaker 3: That's right. She got thrown right into the deep end
Speaker 3: for sure on that one. Within days of being confirmed
Speaker 3: to the office, she was before the court arguing, you know,
Speaker 3: Texas had tried to put forward a law that banned
Speaker 3: abortion after six weeks of pregnancy. Now this is prior
Speaker 3: to the Court overturning the constitutional right to abortion, so
Speaker 3: this was really seen as kind of one of the
Speaker 3: biggest abortion fights that had reached the Supreme Court at
Speaker 3: that time. And the law, as I mentioned, banned abortion
Speaker 3: after six weeks of pregnancy, but also had kind of
Speaker 3: this novel enforcement aspect to it. It left private citizens
Speaker 3: to kind of call people in and you know, cattle
Speaker 3: almost And so she was thrown right into the deep
Speaker 3: end there to argue against that law and to try
Speaker 3: to convince the justices not to let challenges against it
Speaker 3: go forward. And so she ultimately lost that one, but
Speaker 3: you know, she went on to argue many more cases
Speaker 3: of significance that term. Last term, there was a lot
Speaker 3: of cases challenging the COVID policies, so she had a
Speaker 3: lot of those as well. There was people that we
Speaker 3: talked to that said that they can't think of a
Speaker 3: solicter general with so many high stakes challenges, you know,
Speaker 3: right off the bat.
Speaker 1: So this is such a high profile legal job, one
Speaker 1: of the most high profile in the legal profession. Are
Speaker 1: the opportunities after she leaves the office sort of endless.
Speaker 3: It seems that way for sure. I think, you know,
Speaker 3: Elizabeth Prelaber has her pick of jobs if she decides
Speaker 3: to leave the Solister General's office. I've chatted with people
Speaker 3: who said that a lot of former sgs, you know,
Speaker 3: end up in private practice. Some of them, though, go
Speaker 3: on to big roles. You think of William Howard task
Speaker 3: before he was president, he served as Solicitor General. There's
Speaker 3: also been former sds that have gone on to be
Speaker 3: presidents of universities. So it depends on what she wants
Speaker 3: to do. You know, she is the second woman confirmed
Speaker 3: to this role. The first was the justice that she
Speaker 3: clerked for, Justice Olena came So many see this as
Speaker 3: a pathway to the federal bench, either on a district
Speaker 3: a pellet or even the Supreme Court. You know, there
Speaker 3: are many people that say they'd like to see her
Speaker 3: on the Supreme Court and that could be a real
Speaker 3: possibility for her in the future.
Speaker 1: You talked to Neil Katyall who was the former Acting
Speaker 1: Solicitor General, so he said that she has a place
Speaker 1: at Hogan Levels, which is the firm that he's at.
Speaker 3: That's right, So, you know, he had said that he
Speaker 3: wants her back. You know, he hired her originally, so
Speaker 3: she did a stint in private practice before the Splister
Speaker 3: General's office, and he said that he'd love to have
Speaker 3: her back. And I said, well, have you talked to
Speaker 3: her about that? He said, oh, of course not. You know,
Speaker 3: I can't I can't do that, that would be inappropriate.
Speaker 3: But I hope she knows, you know.
Speaker 1: Yeah.
Speaker 3: So I think all the top firms that have specific
Speaker 3: practices in Supreme Court advocacy will be vying for her
Speaker 3: because she does have the stellar reputation in arguing before
Speaker 3: the Supreme Court. So he said he wants her back,
Speaker 3: but he also said, you know, I'd like to see her,
Speaker 3: you know, on the Supreme Court giving some touristeners o
Speaker 3: all a hard time. So we'll have to see what
Speaker 3: she chooses to do. But I think she is definitely
Speaker 3: someone to watch.
Speaker 1: And she's so young to be in this position.
Speaker 3: Forty three, right, Yeah, that's pretty young for veteran Supreme
Speaker 3: Court advocacy standards. So she's really made her way already
Speaker 3: at such a short time, and I think she has
Speaker 3: a long career ahead of her, and so it'll be
Speaker 3: really interesting to see what she does next.
Speaker 1: It's a really interesting story. Thanks so much, Lydia. That's
Speaker 1: Bloomberg Law Senior reporter Lydia Wheeler, and that's it for
Speaker 1: this edition of The Bloomberg Law Show. Remember you can
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