President Barack Obama's nomination of Harvard Law School Dean Elena Kagan to be the next solicitor general inspires reflections not only about who should be the solicitor general, but also about what should be the role of the S.G. The approach of the S.G. is critically important, since the U.S. Supreme Court frequently adopts the position advocated by the S.G.
As former S.G. Seth Waxman noted, a core mission of the S.G. is to vigorously defend congressional legislation and ensure proper respect for congressional policy choices. In the words of Frederick Lehman, a President Taft S.G., "the United States wins its point whenever justice is done its citizens in the courts."
Under Bush, the Office of the Solicitor General (OSG) has often strayed from that vision, repeatedly seeking to provide legal immunity to big business and state governments at the expense of the legal rights of ordinary Americans. The OSG has frequently been instrumental in persuading the Supreme Court to place constraints on citizens' ability to enforce statutory protections in court. In addition, the S.G. has convinced the Supreme Court to sweep aside the protections of state consumer protection and tort law on the basis of broad federal pre-emption. These interpretive approaches flout congressional intent and are in stark contrast to Obama's oft-stated vision, of a legal system protective of the rights of all Americans.
A few examples illustrate where the Bush OSG has strayed from its mission. First, the S.G. has advocated for restrictive interpretations of civil rights laws. In Ledbetter v. Goodyear Tire & Rubber Co., the S.G. argued successfully for a cramped interpretation of Title VII of the Civil Rights Act of 1964 whereby discriminatory pay can only be challenged within months of the original discriminatory decision — notwithstanding that employees may be unaware of discrimination until much later. The OSG ignored the purpose of Title VII, rejected the position of the Equal Employment Opportunity Commission and disregarded precedents in all but one circuit.
The OSG has also sought to cut back the scope and enforceability of other major federal laws by supporting restrictive rules of statutory interpretation. In Stoneridge Inv. Partners LLC v. Scientific-Atlanta, the S.G. argued that, whenever the private enforcement of any statute depends on a judicially implied right of action, the court should construe the substance of that statute as narrowly as possible. And in Gonzaga Univ. v. Doe (2002), the S.G. successfully argued for a limitation of the enforcement of individuals rights under 42 U.S.C. 1983, providing much of the reasoning for a majority opinion that cut back enforcement of dozens of federal statutes.
The OSG has also aggressively advocated pre-emption of state laws to an extent never anticipated by Congress. Last year in Desiano v. Warner-Lambert & Co., the S.G. argued for broad pre-emption of claims related to FDA-approved drugs and drug labels. Despite some laudable exceptions, the overall thrust of the Bush OSG has been toward subordinating congressional intent, and limiting statutory protections and private enforcement.
A new course
Under Kagan, the OSG should return to form. Toward that end, we propose the following principles to guide it:
• Restoring statutory purpose. When considering laws designed to protect individual rights or provide individual benefits, available private remedies should be interpreted as broadly as necessary to further core statutory goals.
• Upholding congressional authority. The Constitution requires the judiciary to recognize and defer to Congress' broad power to enact effective civil rights and other protective laws under the commerce clause and the 14th Amendment, and to apply those laws to the states.
• Limiting federal pre-emption. When federal laws are not in direct conflict with state laws, and Congress has not made explicit its intent to pre-empt state authority, the OSG should advocate for pre-emption only in the rarest of circumstances.
• Rejecting rules that distort federal statutes. The new OSG should reject rules of statutory construction that single out certain types of statutes for especially restrictive interpretation, untethered to congressional intent, on the basis that, e.g., they were passed pursuant to Congress' spending power, incorporate only an implied private right of action or impose restrictions on state officials.
• Equalizing access to justice. A glaring inconsistency in current jurisprudence is that prevailing doctrine is far more hospitable to business litigants seeking supremacy clause-based preemption of state regulation than to individuals, in analogous circumstances, challenging state contravention of federal rights. The S.G. could play a constructive role in assisting the court to reconcile these approaches on terms that ensure that federal mandates can consistently be enforced by their intended beneficiaries.
By following these principles, Kagan could establish herself as America's lawyer instead of an agent of the mighty.
Rochelle Bobroff is directing attorney, and Harper Jean Tobin is a staff attorney, for the Herbert Semmel Federal Rights Project at the National Senior Citizens Law Center.
