In the wake of Justice Anthony Kennedy’s retirement, the talk of the town hinges on who will get the presidential nod to replace the justice from Sacramento, and whether Sen. Mitch McConnell can once again muster the necessary votes to secure a razor-thin confirmation victory. Meanwhile, a quieter, end-of term high court-watching rite is well underway, as pundits and scholars engage in numbers crunching to shed light on who’s up and who’s down on the court. Whether Kennedy’s influence waxed or waned during his final term is informative, but what avid court observers also want to answer is the perennial question: How did the solicitor general perform?
From its birth in 1870, the Office of the Solicitor General has been a pivotal presence in the U.S. Supreme Court’s daily labors. From William Howard Taft to Robert Jackson, Archibald Cox and Thurgood Marshall, and more recently Elena Kagan, the office has a virtual elbow-length relationship with the nine justices. No one else gets called by the nation’s highest court, regularly, for a weighty task: Please tell us, the Supreme Court inquires, whether we should hear the case. The SG is, in effect, a super high-level consultant, operating independently from and outside the justices’ confidential deliberations, and yet a familiar friend provided with a convenient physical office inside the court. Famously dubbed “the Tenth Justice,” the SG’s success tends ultimately to be measured, as in baseball, by the won-loss statistics that emerge from each term.
This term, Solicitor General Noel Francisco turned in a truly epic performance. While the SG’s overall won-loss percentage (around 63 percent, by my estimate) fits within the general declining trend of wins in cases litigated by the Office of the Solicitor General where the government is a party (a trend which can be attributed to a court which, as a whole, has been more hostile to the government in criminal and administrative cases), the still-new SG won the equivalent of the Triple Crown in horse racing. Of particular importance, in every instance that the rookie solicitor general switched the government’s position from that embraced in the Obama era, he walked away a winner. That’s an extraordinary accomplishment.
Switching positions in pending Supreme Court cases is a highly delicate task in making judgment calls. Considerations weigh strongly in favor of staying the course already taken. After all, the federal government’s legal positions grow out of the orderly operations of government, with elaborate decision-making carried out along the typically lengthy journey to the Supreme Court. Once the federal government stakes out a legal or constitutional position, the strong presumption is to keep the faith.
But elections, like ideas, have consequences. Deeply held philosophical and policy views undergird the fashioning of specific legal positions. Those visions will naturally clash in a free society, particularly in a transition from a very progressive administration to a decidedly conservative one. Consider Francisco’s switch in the compulsory union dues case. A fault line looms large in the case—what weighs more decisively, the union’s ability to carry out its functions in a predictable, orderly manner, or the dissenting employee’s claim of individual freedom from compulsory financial support of a union he or she doesn’t want to join? Quite naturally the Obama administration sided with the union; just as predictably, the Trump administration, through the voice of the new solicitor general, championed the individual’s claim for liberty from coercion.
That same value of individual freedom carried the day in the term’s closely-watched wedding cake case, Masterpiece Cakeshop. No change of position was required, but the case laid bare the basic conflict of perspectives—a powerful principle of nondiscrimination set against the baker’s claim for freedom of conscience.
What the SG’s perfect record—four wins, no losses—in the switch-in-position cases demonstrates is the triumph of ideas and principles that capture the essence of any administration, Republican or Democrat. In the Trump administration, individual liberty values prevailed over organizational needs or preferred societal values. So too, as in the SEC case involving the appointment of administrative law judges, the foundational importance of separation of powers and accountability resulted in the SG’s switch in position that captured the vote of Kagan, an Obama appointee, resulting in a 6-3 win—or, depending on how you look at it, a 7-2 victory since Justice Stephen Breyer disagreed with the remedy, but agreed on the merits. Francisco likely saw that coming, a factor that would naturally weigh in the balance of whether to position-switch.
The Ohio voter registration case likewise pitted a basic principle—the federalism-friendly concept of an individual state’s control over elections, as against a deeply held value of ballot access by under-represented or at-risk communities. At bottom, the case boiled down to statutory interpretation, with Francisco embracing a Antonin Scalia-like textualist approach to divining the meaning of Congress’ work product. Once again, the solicitor general changed the government’s position to champion traditionalist principles of statutory interpretation, in the context of the rights of states to control their own electoral affairs—a position that would certainly not have been welcomed by a Hillary Clinton-appointed SG.
The nine justices have now taken their leave for the summer, and headed off to more pleasant climes in New England or Colorado. The SG’s work continues apace. But as Kennedy looks ahead to the joys of energetic retirement, the Trump administration’s solicitor general can look back with pride on a term of spectacular success. Whether in baseball or Supreme Court litigation, the numbers tell the story. And Francisco’s perfect record in some of the court’s most sensitive cases represents a magnificent achievement for any occupant of that office—and all the more so for a rookie.
Ken Starr was U.S. solicitor general from 1989-1993. He is former president of Baylor University, former dean of Pepperdine University School of Law, former independent counsel, former partner of Kirkland & Ellis and Gibson, Dunn & Crutcher and former U.S. circuit Judge.