WEBVTT - Solicitor General Walks Fine Line With Skeptical Court

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<v Speaker 1>This is Bloomberg Law with June Brusso from Bloomberg Radio.

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<v Speaker 2>We'll hear argument this morning in case twenty two to

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<v Speaker 2>fifty eight United States versus Texas. General preliguard, mister Chief Justice,

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<v Speaker 2>and may it please the Court. There are more than

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<v Speaker 2>eleven million removable non citizens in this country and DHS

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<v Speaker 2>has about six thousand interior enforcement officers. To focus the

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<v Speaker 2>agency's limited resources on threats to public safety, national security,

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<v Speaker 2>and border security, DHS adopted enforcement priorities, but the district

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<v Speaker 2>Court issued a sweeping ruling vacating the guidelines nationwide. This

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<v Speaker 2>court should reverse.

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<v Speaker 1>And the court did reverse, allowing the Biden administration to

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<v Speaker 1>shift the government's immigration enforcement priorities. It was one of

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<v Speaker 1>the eight cases that Solicitor General Elizabeth Prelager argued at

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<v Speaker 1>the Supreme Court last term, trying to convince at least

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<v Speaker 1>five of the nine justices to sode with the government,

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<v Speaker 1>a task that's gotten tougher with a conservative led court

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<v Speaker 1>less inclined to sod with the Biden administration and willing

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<v Speaker 1>to overturn president. But in the case of United States

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<v Speaker 1>versus Texas, pre Lager managed to convince eight of the

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<v Speaker 1>nine justices joining me is Lydia Wheeler, Bloomberg Law Senior reporter.

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<v Speaker 1>Let's start on a personal note. Lawyers are often creatures

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<v Speaker 1>of habit with rituals before trials or arguments, and pre

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<v Speaker 1>Lager has a breakfast ritual.

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<v Speaker 3>So Supreme Court argument days always start out the same.

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<v Speaker 3>For the blister General, Elizabeth Prelagger, she eats five or

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<v Speaker 3>six bananas, if you can believe it, in the morning

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<v Speaker 3>for breakfast. She said this while she was speaking recently

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<v Speaker 3>in May, she gave a public appearance at a Circuit

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<v Speaker 3>Court conference, and she says that it is a really good

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<v Speaker 3>breakfast to calm your nerves. From what I've heard from

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<v Speaker 3>others is there's apparently some natural beta blockers in bananas

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<v Speaker 3>that help with anxiety and nervous So that's her routine.

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<v Speaker 1>So the introduction is very short before they start hammering

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<v Speaker 1>you with questions. And she tries that out on her

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<v Speaker 1>preteen sons.

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<v Speaker 3>Yeah, that's right. So they only get a couple of

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<v Speaker 3>minutes to kind of kick off their arguments uninterrupted, you know,

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<v Speaker 3>before the justices start jumping in with question when you're

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<v Speaker 3>arguing before the court. So the splitter General said that

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<v Speaker 3>she in preparing for her argument. The day before the argument,

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<v Speaker 3>she tries to cut her day off kind of at

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<v Speaker 3>a normal business hour and go home and have dinner

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<v Speaker 3>with her family. And then when dinner's done, she said,

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<v Speaker 3>she practices her opening arguments in front of her sons,

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<v Speaker 3>who at the time in May, we're nine and twelve.

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<v Speaker 3>And then they rate her. She said, you know, just

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<v Speaker 3>go one to ten on how well she's done. And

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<v Speaker 3>so she doesn't always get a ten. I think, she said,

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<v Speaker 3>like the last time they raid her, she got a seven.

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<v Speaker 1>Well, they're pretty good if they're understanding those at that age.

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<v Speaker 1>So for those who may not be familiar with the

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<v Speaker 1>office of the solicitor General, tell us why the solicitor

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<v Speaker 1>general is sometimes referred to as the tenth justice.

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<v Speaker 3>Right, So, the solicitor General's job is to be the

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<v Speaker 3>one who represents the federal government and court at the

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<v Speaker 3>Supreme Court specifically, so that is the person who's defending

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<v Speaker 3>the administration against challenges to their policies. They also jump

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<v Speaker 3>in kind of to other arguments. Sometimes they're asked by

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<v Speaker 3>the court kind of what are their views on the

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<v Speaker 3>challenge and that they may not be involved in, and

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<v Speaker 3>so they're seen as being kind of above the fray,

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<v Speaker 3>above the political partisanship, and so that's why they're often

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<v Speaker 3>referred to as the tenth Justice. And that makes the

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<v Speaker 3>job pretty difficult, right, because you have to think about

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<v Speaker 3>your objectives in the immediate but also the government's long

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<v Speaker 3>term interest.

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<v Speaker 1>This court is very conservative, as a super conservative majority.

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<v Speaker 1>Does that make her job more difficult when she's advocating

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<v Speaker 1>for the Biden administration?

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<v Speaker 3>Absolutely. You know, my colleague Kimberly Robinson and I chatted

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<v Speaker 3>with people who have held this post before, and we

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<v Speaker 3>chatted with people who have worked for and with this

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<v Speaker 3>lister General, and they all have agreed that this is

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<v Speaker 3>a difficult job that's gotten even tougher with a course

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<v Speaker 3>that's dominated six to three by conservatives. And these are

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<v Speaker 3>conservatives who have not only shown us that they're willing

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<v Speaker 3>to overturn Supreme Court precedent, but also these are conservatives

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<v Speaker 3>who seem deeply skeptical of what they view as the

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<v Speaker 3>administration's aggressive use of executive power when there is an

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<v Speaker 3>express authorization from Congress to take certain actions.

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<v Speaker 1>And she can't make inconsistent arguments or burn bridges because

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<v Speaker 1>she knows she'll be back again arguing before them.

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<v Speaker 3>That's right. That's what makes this job kind of tough, right,

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<v Speaker 3>is that she has to be strategic and find the

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<v Speaker 3>winning arguments that are going to you know, maybe squeak

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<v Speaker 3>out a win where she can without kind of creating

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<v Speaker 3>roadblocks for the government in the future. You know, one

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<v Speaker 3>argument that they might want to put forward and to

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<v Speaker 3>win one case might not work later on, or you know,

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<v Speaker 3>might come back to bite them. So she has to

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<v Speaker 3>be very careful all about the arguments that she's presenting.

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<v Speaker 3>And you know, surprisingly, despite all the challenges that she's facing,

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<v Speaker 3>she was able to sweak out some surprising victories this term.

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<v Speaker 3>You know, she ended the court with a foreign four record.

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<v Speaker 1>I was looking at that foreign four record. How do

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<v Speaker 1>people view that? Because you know, it's a draw.

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<v Speaker 3>I mean, I think that some people thought that it

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<v Speaker 3>was better than what they had anticipated. But you know,

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<v Speaker 3>some legal scholars that I spoke with said that that's

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<v Speaker 3>really indicative of how people view the court. You know,

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<v Speaker 3>given the conservative makeup, is that people think that if, oh,

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<v Speaker 3>the Biden administration's attorneys before the court, they're never going

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<v Speaker 3>to win. Right. Well, Elizabeth Prelauger showed us that that's

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<v Speaker 3>not always the case, you know. And then there were

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<v Speaker 3>cases where although they look like it's a loss to

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<v Speaker 3>her and we count them as a loss, she was

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<v Speaker 3>able to kind of stop the court from going farther

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<v Speaker 3>than it could have. And I think that that really

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<v Speaker 3>speaks to kind of how talented she is in this role.

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<v Speaker 3>We heard from people who have worked with her work

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<v Speaker 3>for her, who just say that in an office where

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<v Speaker 3>there's exemplary attorneys, that Elizabeth Prelager is kind of a

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<v Speaker 3>star amongst ours.

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<v Speaker 1>So she lost some big cases, like affirmative action in

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<v Speaker 1>Biden's student loan program, but then again she won some

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<v Speaker 1>big cases.

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<v Speaker 3>That's right. You know, the court sided with her in

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<v Speaker 3>rejecting a Republican backed effort to give state legislatures and

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<v Speaker 3>here exclusive authority to step federal election rules. You know,

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<v Speaker 3>that case was known as Moore versus Harper, and court

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<v Speaker 3>watchers were really worried about it because it had the

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<v Speaker 3>potential to really kind of wreck havoc on federal election

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<v Speaker 3>rules and really changed the twenty twenty four election results.

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<v Speaker 3>And then there was another case where you know, she

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<v Speaker 3>lost ultimately in fighting for President Biden's student loan forgiveness plan.

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<v Speaker 3>But you'll remember that there were two cases against that,

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<v Speaker 3>and she convinced the court to toss out one of

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<v Speaker 3>those challenges. But that was technically a win. That was

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<v Speaker 3>a challenge that student loan borrowers had brought against the plan,

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<v Speaker 3>and she had argued that they didn't have the required

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<v Speaker 3>in injury to bring their lawsuit in court, and the

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<v Speaker 3>court unanimously agreed with her on that one. There are

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<v Speaker 3>other wins too, you know, she scored victories when the

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<v Speaker 3>court let the Biden administration shift its immigration policies, and

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<v Speaker 3>also when it upheld a lower court's decision that requires

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<v Speaker 3>Alabama to draw a second majority black congressional district. So

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<v Speaker 3>that was a voting rights case that really threatened Voting

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<v Speaker 3>Rights Act that she was able to win. There.

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<v Speaker 1>Tough job, It's an uphill battle every time.

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<v Speaker 3>Yeah, let's talk.

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<v Speaker 1>About her background. I was surprised to learn she has

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<v Speaker 1>a master's degree in creative writing, which may be helpful

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<v Speaker 1>in some of these cases.

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<v Speaker 3>But I think it is you know, a lot of

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<v Speaker 3>people spoke to the fact that she is a really

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<v Speaker 3>talented writer here. You know, when she spoke at that

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<v Speaker 3>conference in May and Philadelphia, as she actually said she

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<v Speaker 3>thought she was going to go into journalism. That was

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<v Speaker 3>a career path that she thought that she was headed for.

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<v Speaker 3>Before Harvard, she.

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<v Speaker 1>Clerk for both the late Justice Ruth Bader Ginsburg and

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<v Speaker 1>Justice Elena Kagan, and they said she was one of

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<v Speaker 1>the best law clerks had.

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<v Speaker 3>Yeah, that's right. So she had the rarity where she

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<v Speaker 3>clerked for not only one, but two Supreme Court justices.

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<v Speaker 3>She also clerked for Merrik Garland, who was at the

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<v Speaker 3>time a judge on the DC Circuit Court of Appeals.

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<v Speaker 3>And when she was applying for her role in this

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<v Speaker 3>Blister General's office, Donald Verilli, who also served as the

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<v Speaker 3>Blister General, you know, he hired her to that office

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<v Speaker 3>in an assistant capacity. And he said that he actually

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<v Speaker 3>got phone calls from both of the justices, both Ginsburg

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<v Speaker 3>and Kagan, called him and said, you know, hey, you

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<v Speaker 3>have to hire her. You couldn't possibly do any better.

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<v Speaker 3>She's one of the best law clerks that we've ever had.

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<v Speaker 3>And you know, I spoke with another attorney who also

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<v Speaker 3>had hired Elizabeth Prelagger in private practice, and he said

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<v Speaker 3>that he had also received a phone call from Justice Ginsberg,

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<v Speaker 3>who at the time had said that Elizabeth Prelagger was

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<v Speaker 3>the best law that she had ever had in I

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<v Speaker 3>think some thirty years.

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<v Speaker 1>Hi praise you write that the same word was used

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<v Speaker 1>over and over to describe her. Unflappable.

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<v Speaker 3>Yeah. Absolutely. An interview after interview after interview that we

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<v Speaker 3>did to learn about her and her record and what

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<v Speaker 3>she's like, the same word kept coming up time and again.

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<v Speaker 3>And you know, people say that she's just someone who's

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<v Speaker 3>kind of unshaken. You know, she has an incredible talent

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<v Speaker 3>to answer the justices questions and to go before a

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<v Speaker 3>course that's sometimes seen as pretty hostile, you know, to

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<v Speaker 3>the positions that she's putting forth, and that she's just

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<v Speaker 3>completely unshaken. You know, I chatted with this woman who

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<v Speaker 3>worked as a Bristow fellow in the office of Splitter

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<v Speaker 3>General and she said that, you know, she worked under

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<v Speaker 3>Elizabeth Prelager and said that she never saw her get stressed.

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<v Speaker 3>You know, everybody gets stressed out and gosh, the Blister

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<v Speaker 3>General's job is so stressful. But you know, she said

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<v Speaker 3>that Elizabeth Prelober is very good at not showing that

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<v Speaker 3>and also not letting that stress trickle down to the

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<v Speaker 3>staff below her.

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<v Speaker 1>I hadn't realized this, but when she started as Solicitor

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<v Speaker 1>General last term, her first challenge was the abortion arguments,

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<v Speaker 1>which you know, we know were the most high profile

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<v Speaker 1>of that term and perhaps the most high profile of

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<v Speaker 1>many terms.

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<v Speaker 3>That's right. She got thrown right into the deep end

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<v Speaker 3>for sure on that one. Within days of being confirmed

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<v Speaker 3>to the office, she was before the court arguing, you know,

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<v Speaker 3>Texas had tried to put forward a law that banned

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<v Speaker 3>abortion after six weeks of pregnancy. Now this is prior

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<v Speaker 3>to the Court overturning the constitutional right to abortion, so

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<v Speaker 3>this was really seen as kind of one of the

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<v Speaker 3>biggest abortion fights that had reached the Supreme Court at

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<v Speaker 3>that time. And the law, as I mentioned, banned abortion

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<v Speaker 3>after six weeks of pregnancy, but also had kind of

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<v Speaker 3>this novel enforcement aspect to it. It left private citizens

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<v Speaker 3>to kind of call people in and you know, cattle

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<v Speaker 3>almost And so she was thrown right into the deep

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<v Speaker 3>end there to argue against that law and to try

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<v Speaker 3>to convince the justices not to let challenges against it

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<v Speaker 3>go forward. And so she ultimately lost that one, but

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<v Speaker 3>you know, she went on to argue many more cases

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<v Speaker 3>of significance that term. Last term, there was a lot

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<v Speaker 3>of cases challenging the COVID policies, so she had a

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<v Speaker 3>lot of those as well. There was people that we

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<v Speaker 3>talked to that said that they can't think of a

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<v Speaker 3>solicter general with so many high stakes challenges, you know,

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<v Speaker 3>right off the bat.

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<v Speaker 1>So this is such a high profile legal job, one

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<v Speaker 1>of the most high profile in the legal profession. Are

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<v Speaker 1>the opportunities after she leaves the office sort of endless.

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<v Speaker 3>It seems that way for sure. I think, you know,

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<v Speaker 3>Elizabeth Prelaber has her pick of jobs if she decides

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<v Speaker 3>to leave the Solister General's office. I've chatted with people

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<v Speaker 3>who said that a lot of former sgs, you know,

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<v Speaker 3>end up in private practice. Some of them, though, go

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<v Speaker 3>on to big roles. You think of William Howard task

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<v Speaker 3>before he was president, he served as Solicitor General. There's

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<v Speaker 3>also been former sds that have gone on to be

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<v Speaker 3>presidents of universities. So it depends on what she wants

0:11:52.520 --> 0:11:55.439
<v Speaker 3>to do. You know, she is the second woman confirmed

0:11:55.480 --> 0:11:58.400
<v Speaker 3>to this role. The first was the justice that she

0:11:58.440 --> 0:12:01.520
<v Speaker 3>clerked for, Justice Olena came So many see this as

0:12:01.559 --> 0:12:05.040
<v Speaker 3>a pathway to the federal bench, either on a district

0:12:05.120 --> 0:12:07.640
<v Speaker 3>a pellet or even the Supreme Court. You know, there

0:12:07.640 --> 0:12:09.719
<v Speaker 3>are many people that say they'd like to see her

0:12:09.760 --> 0:12:12.160
<v Speaker 3>on the Supreme Court and that could be a real

0:12:12.200 --> 0:12:13.560
<v Speaker 3>possibility for her in the future.

0:12:14.280 --> 0:12:19.120
<v Speaker 1>You talked to Neil Katyall who was the former Acting

0:12:19.200 --> 0:12:22.480
<v Speaker 1>Solicitor General, so he said that she has a place

0:12:22.720 --> 0:12:25.520
<v Speaker 1>at Hogan Levels, which is the firm that he's at.

0:12:25.880 --> 0:12:28.080
<v Speaker 3>That's right, So, you know, he had said that he

0:12:28.120 --> 0:12:30.720
<v Speaker 3>wants her back. You know, he hired her originally, so

0:12:30.760 --> 0:12:33.760
<v Speaker 3>she did a stint in private practice before the Splister

0:12:33.880 --> 0:12:36.120
<v Speaker 3>General's office, and he said that he'd love to have

0:12:36.200 --> 0:12:37.679
<v Speaker 3>her back. And I said, well, have you talked to

0:12:37.679 --> 0:12:39.280
<v Speaker 3>her about that? He said, oh, of course not. You know,

0:12:39.320 --> 0:12:41.520
<v Speaker 3>I can't I can't do that, that would be inappropriate.

0:12:41.559 --> 0:12:42.640
<v Speaker 3>But I hope she knows, you know.

0:12:43.320 --> 0:12:43.560
<v Speaker 1>Yeah.

0:12:43.679 --> 0:12:46.120
<v Speaker 3>So I think all the top firms that have specific

0:12:46.160 --> 0:12:50.040
<v Speaker 3>practices in Supreme Court advocacy will be vying for her

0:12:50.120 --> 0:12:53.640
<v Speaker 3>because she does have the stellar reputation in arguing before

0:12:53.640 --> 0:12:56.000
<v Speaker 3>the Supreme Court. So he said he wants her back,

0:12:56.000 --> 0:12:58.040
<v Speaker 3>but he also said, you know, I'd like to see her,

0:12:58.320 --> 0:13:00.760
<v Speaker 3>you know, on the Supreme Court giving some touristeners o

0:13:00.920 --> 0:13:02.800
<v Speaker 3>all a hard time. So we'll have to see what

0:13:02.880 --> 0:13:04.840
<v Speaker 3>she chooses to do. But I think she is definitely

0:13:04.840 --> 0:13:05.520
<v Speaker 3>someone to watch.

0:13:05.640 --> 0:13:08.040
<v Speaker 1>And she's so young to be in this position.

0:13:08.240 --> 0:13:12.360
<v Speaker 3>Forty three, right, Yeah, that's pretty young for veteran Supreme

0:13:12.360 --> 0:13:16.320
<v Speaker 3>Court advocacy standards. So she's really made her way already

0:13:16.360 --> 0:13:18.600
<v Speaker 3>at such a short time, and I think she has

0:13:18.640 --> 0:13:20.760
<v Speaker 3>a long career ahead of her, and so it'll be

0:13:21.120 --> 0:13:22.959
<v Speaker 3>really interesting to see what she does next.

0:13:23.160 --> 0:13:25.880
<v Speaker 1>It's a really interesting story. Thanks so much, Lydia. That's

0:13:25.920 --> 0:13:29.559
<v Speaker 1>Bloomberg Law Senior reporter Lydia Wheeler, and that's it for

0:13:29.600 --> 0:13:32.240
<v Speaker 1>this edition of The Bloomberg Law Show. Remember you can

0:13:32.280 --> 0:13:35.520
<v Speaker 1>always get the latest legal news on our Bloomberg Law podcast.

0:13:35.800 --> 0:13:38.800
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0:13:38.960 --> 0:13:44.000
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0:13:44.080 --> 0:13:47.119
<v Speaker 1>remember to tune into The Bloomberg Law Show every weeknight

0:13:47.240 --> 0:13:50.680
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0:13:50.720 --> 0:13:52.199
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