Solicitors General analyze Kagan’s new role

BY MATT HUTCHINS

Former Solicitor General and current Benficial Professor of Law Charles Fried
Solicitor General Kagan ’86 and Prof. John F. Manning ’85

Solicitor General Elena Kagan ’86, formerly dean of Harvard Law School, made her first visit back to HLS since assuming her full duties in Washington just days after her first argument before the Supreme Court. Although her appearance occurred late on a Friday afternoon the week before much of the school goes on vacation, the event drew a standing room crowd to hear the former Dean’s impressions of her new role in the Obama administration. 

The event took the form of a panel discussion moderated by Dean Martha Minow and featuring, along with Kagan, former Solicitor General and current Beneficial Professor of Law Charles Fried and Bruce Bromley Professor of Law John F. Manning ’85, who served from 1991 to 1994 as Assistant to the Solicitor General. 

The panelists congratulated Kagan on her ascension to the post of Solicitor General and extolled the virtues of the office, citing the consummate professionalism of its attorneys and the lack of politicization of decision making that has characterized the conduct of Solicitors General, even throughout the contentious Bush Presidency. 

Much of the discussion centered on examining the evolution of the Solicitor General’s role from the time of Professor Fried’s tenure under President Regan to the current moment. Prof. Fried presented quantitative analysis which showed the decline in the number of cases handled by the Solicitor General’s office, a phenomenon dictated by the lighter case load currently handled by the Supreme Court. At the same time, increasing numbers of cases in the Federal Courts have put significant pressure on the filtering process executed by the Solicitor General in deciding which cases should should be recommended for certiorari to the Court. 

Dean Minow cited the filtering mechanism performed by the Solicitor General as a key component of the enduring perception of that post as the “Tenth Justice”, but Prof. Fried cautioned that after having taught at Harvard Law School it is important to remember that during oral arguments, “It is not one professor and nine students, but rather it is nine professors and one student.” Kagan admitted that one of the reasons for the eighty percent acceptance rate of cases recommended by the Solicitor General is that, “The Solicitor General employs a very fine filter and really tries to see the case through the eyes of the Court.” This filtering process is made more effective by reliance upon “a literal army of lawyers” across the Federal Government, performing legal analysis, writing memos recommending cases, and selecting only those matters that present an issue which has been sufficiently “ventilated” in the lower courts. At the upper echelon of this process, the Solicitor General is assisted primarily by former Supreme Court clerks with significant appellate practice and “living legends” from the Department of Justice with an encyclopedic knowledge of the law. 

On the subject of to whom she is accountable and in whose interest she primarily advocates, Solicitor General Kagan stated emphatically that she would defend the constitutionality of any act of Congress that was not patently beyond the scope of its authority. Prof. Fried pointed out that this role played by the Solicitor General has occasionally led to a conflict with the Executive’s policy positions, as in District of Columbia v. Heller, 554 U.S. ___ (2008), in which Vice President Cheney submitted an amicus brief directly opposing the position of the Solicitor General. According to Kagan, “Sometimes it is complicated to decide who exactly the United States is in a particular matter.” She acknowledged, however, that, “My ultimate boss is President Obama.” 

Kagan said that even though she exercises significant policy-making authority in her present role, she has little direct contact with the President, much less indeed than she had working in the Office of Legal Counsel under President Clinton. Professor Manning explained that despite the traditional distance between the White House and the Solicitor General, there is no doubt that the President has the authority to instruct the Solicitor General to present a particular argument before the Supreme Court. In such a case, the Solicitor General would have the prerogative to either support the President’s position as an accurate description of the law or else resign. He said that no Solicitor General would ever endorse a position that did not accurately reflect the law because every argument presented before the Court has the potential to set a precedent against which the United States’ future arguments would be measured. 

The scrupulously principled approach to representing the United States historically taken by Solicitors General is just one component of what all the panelists agreed makes the office a key component of the professional and objective administration of justice and a model for legal practice.

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