The Marble Palace Blog: General Prelogar

There was some suspense at the Supreme Court on November 1, when new Solicitor General Elizabeth Prelogar took to the lectern for her first appearance in that position. Would she be called General Prelogar?

The answer came swiftly, when Roberts began the oral argument: “We’ll hear argument next in Case 21-588, United States v. Texas.” He paused and said to the first lawyer to argue in the case: “General Prelogar.”

Why was that a thing? After all, women can be generals just like men.

It’s a bit complicated. As University of Texas law professor Steve Vladeck put it in a tweet that day, “The Solicitor General is not a ‘General.’ The word ‘General’ in the title is an adjective, and adjectives aren’t honorifics.”

That provoked some stern discussion. “Don’t care. Going to call her GENERAL Prelogar ’til the wheels fall off,” wrote Melissa Murray, professor at New York University School of Law.

As with almost anything Supreme Court-related, there’s a precedent for this. In May 2009, soon after Elena Kagan was confirmed as U.S. solicitor general, the first female to hold that position, I interviewed her at a Penn Quarter restaurant. Most of the questions were meaty, but I just had to ask the “general” question. Here’s the conversation:

How do you like being addressed as “General Kagan”? I hear you don’t mind it.

Kagan: “A few more weeks, and I’ll be expecting everyone to salute me. But seriously, I’ll tell you a story. Just after my confirmation [in March], a member of the Administrative Office of the Court called to ask me whether I wanted the justices to call me ‘general’ during oral argument. It was a very considerate thing to give me the choice; I know, for example, that Attorney General [Janet] Reno disliked being called ‘general.’ But my thought basically was: The justices have been calling men SGs ‘general’ for years and years and years; the first woman SG should be called the same thing.”

So, if Prelogar was offered the same choice as Kagan, she opted for “General Prelogar.” Incidentally, Prelogar clerked for Kagan during her first term on the Supreme Court.

During the 2009 interview, I also felt obliged to ask Kagan another burning but somewhat trivial question:

I’ve got to ask if you’ve decided whether to wear a morning coat when you do argue. A lot of people are wondering.

Kagan: “I’d be giving you a big scoop if I told you that, Tony. I’ll just say that I’ve learned in the last month that this is a very complicated question. There are a great many people who feel that they have a stake in it, although I should note that the justices themselves have made clear that the choice is entirely mine.”

What input are you getting from the women and men in the solicitor general’s office?

“I suspect if I took a vote in the office, it would come out in favor of the morning coat. And most of the women in the office now wear the coat themselves. But one of the things I learned as a law school dean is that sometimes you don’t take votes. In the end, I’ll decide this one by myself.”

In the end, Kagan decided against the morning coat. So did Prelogar.