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my name is jamie bosket have the privilege of serving as president and ceo here at the virginia museum of history and culture. and i'm honored to be the first to officially welcome you to tonight's program. thank you so much for joining us this evening. we are so pleased to be co-presenting this timely discussion with our and a modern to be the first to officially welcome you to tonight program thank you for joining us. this evening we're so pleased to be co-presenting this timely discussion with our friends at the john marshall center for constitutional history and civics. i'm also pleased to serve on the board of the john marshall center but that's of the most important reason why collaboration between these two organizationsd is such a natur. we have shared values and a shared history. after all, chief justice john marshall as many of you know was the very first president of this historical society. civics and history are fundamentally linked, and alike for its engaged citizenry so were thrilled to present this program together.

i have to take a sidebar because just the other day i was looking at theen civics study presented annually by the public policy center at the university of pennsylvania, and thinking about in the context of having robust conversations about being engaged in our government, they do this every year on constitutional day this national survey and it wasn't pretty. to say the least. lessss than half, less than hal, 47% of u.s. adults could name all three branches of government.co only one in four respondents could name a single branch. asked to name the rights protected by the first amendment, people were at a loss. less than one in four, 24%, could name freedom of religion. this is a time for educational organizations like the v.a. makes he, like the john marshall

center to keep doing everything we can come everything we can to inform and engage virginians, americans and everyone who will listen was fortunate enough to be in this wonderful country. so we're going to keep up all this great work and we can do that together and we're thrilled to do it, and thrilled to put on such an engaging program that hits of these are topics tonight. so thank you to all of the members of the virginia museum of history and culture, also to the members of the john marshall center for empowering us to do this collective good work. it's now my pleasure to make introduction for two nights program to invite my fellow trustee at the john marshall center forward paul harris to introduce our speakers. thank you so much. [applause] >> good evening. good evening. >> that evening. >> i had the distinct privilege of the ceding of introducing our distinguishedstin moderator andr

distinguished panelists, two of whom are former colleagues from the department of justice and a new friend in donald verrilli, the letter to all of them with us this evening. i'll begin by introducing our distinguished moderator, professor alison larson is a professor of law andhe directorf the william and mary institute of the bill of rights law. since joining the william and mary lawes faculty in 2010, professor larson has received many awards honoring her teaching in scholarship, including the statewide outstanding faculty award in the rising star category. this is virginia's highestonin faculty honor. she is a scholar of constitutional law and legal institutions with a focus on how information dynamics affect both. i work on fact-finding at the supreme court has been featured

multipleec times in the "new yok times," the "washington post" and the "wall street journal." was also the subject of her testimony before the senate judiciary committee in april 2021. professor larson has published in the nation's top long reviews, and her work is been cited by four different use courts of appeals. she appeared with stephen colbert as as a guest when te report to discuss her scholarship -- [laughing] she also has a little fun. [laughing] her scholarship for supreme court amicus briefs,ss subject n which she has also testified before the presidential commission, on supreme court before. professor larson earned her bachelor of arts degree from william and mary in a law degree from university of virginia where she graduated first in her class. after law school professor

larson clerked for judge j harvie wilkinson of the u.s. court of appeals for the fourth circuit, and for justice david souter of the united states supreme court. l professor larson. [applause] >> i will introduce the panelists in the order in which they served as solicitor general. paul, paul clement was the 43rd solicitor general of the united states. he is a partner at the climate and murphy law firm and distinguished lecture in law at the georgetown university law center. he served as solicitor general from june 2005 until june 2008. before his eight. before his confirmation as solicitor general, he served as acting solicitor general for nearly a year and as principal deputy solicitor general for over three years. he has argued over 100 cases

before the united states supreme court. mr. clement practice areas focus on appellate matters, constitutional litigation a strategic counseling. he represents a broad array of clients in the supreme court and in federal and state appellate courts. last year he successfully argued supreme court cases involving significant issues of energy regulation, statutory interpretation, states immunity and article iii standing. and successfully argued a trademark appeal in the fourth circuit anticonstitutional appeal before the en bloc 11th circuit. mr. clement earned his bachelor of science degree summa cum laude from georgetown university school of foreign service, master of philosophy degree from darwin college at cambridge, and juris doctor, magna cum laude, from harvard law school. where he was supreme court editor of the harvard law review. following law school, mr. clement clerkedou for judge

lawrence h silverman of the u.s. court of appeals for the d.c. circuit, and for justice antonin scalia of the united states supreme court. after his clerkships he went on to serve as chief counsel of the u.s. senate subcommittee on the constitution, federalism and property rights. please hope to welcome mr. clement. [applause] -- please help me. >> donald verrilli junior was the 46 solicitor general of the united states. mr. verrilli is a partner in the law firm munger tolls and olson and the founder of its washington, d.c. office. mr. verrilli is also a lecturer in law at columbia law school where he teaches classes on the first amendment and the supreme court. previously he taught firston

amendment law for many years at the georgetown university law center. mr. verrilli is one of the nation's premier supreme court and appellate advocates. he served as solicitor general of the united states from june june 2011 2011-june 2016. before serving as solicitor general, mr. verrilli served as deputy white house counsel and previously as associate deputy attorney general in the united states department of justice. in those positions he counseled president obama, cabinet secretaries, and other seniordes government officials on on ae range of legal issues involving national security, economic regulation, domestic policy, and the scope of executive and administrative authority. mr. verrilli earned his bachelor of arts degree cum lauded from the yale, yale university and his juris doctorate degree with honors from columbia law school where he was editor in chief of the columbia law review.

please help me welcome mr. verrilli. [applause] and lastso but certainly not least, noel francisco was a 47th solicitor general of the united states. mr. francisco is a partner in charge of the washington office of the jones day law firm. mr. francisco served as solicitor general from 2017- 2017-2020.0. he represents clients in a broad array of civil and criminal litigation, challenges to federal and state laws and regulations, and government investigations and enforcement actions. the matters he handles often a significant public policy implications, including in the areas of global climate change, opioids, asbestos, tobacco, firearms, healthcare, administrative law, free speech, religious liberty, and

separation of powers. he earned his bachelor of arts degree in economics with honors university of chicago, and his juris doctor with high honors also from university of chicago. at the law school mr. francisco served as a law clerk to justice antonin scalia of the united states supreme court and before that he served as a law clerk to judge j michael lytic on u.s. court of appeals for the fourth circuit work later mr. francisco served as deputy assistant attorney general in the office of legal counsel at the u.s. department of justice, and prior to that as associate counsel to the president of the united states. please help me welcome mr. francisco. [applause] >> thank you so much, paul. you already for a treat tonight. have you ever seen when they do a hollywood promo and they say

all-star cast? this is an all-star cast of lawyers. [applause] so you heard from paul these are three former solicitor generals of the united states so i thought we would just i would give you a bit of context why that such a big deal and what that means. the office of the solicitor general supervises and convex litigation on behalf of the united states in front of your supreme court. and they are very busy because approximatelyre two-thirds of te cases that the supreme court hears on the merits involves the united states. so the solicitor general has been called the tenth justice, and the reason for that is because that office has developed over time a reputation

solicitor general as justice ase and your position is just locked in because you're representing the government. but there are good ways to lose and bad ways to lose. and sometimes when i'm not, i'm only joking. sometimes you're trying to guide to lose and bad ways to lose. sometimes, but i'm only half joking or sometimes you're trying to guide the court to way to rule against you that will do

the least amount of damage to the governments institution interest. and actually the very first case i ever argued in the supreme court was against on and it was a big separation of powers case where it was prettyyt clear tht the court was leaning in favor of my client on the bottom line position. it had to do with the president recess appointment authority but there were two ways i could win the case. one was a very broad rule that would've called into question a lot of recessof appointments and the other was a very narrow rule when my client would have one but nonetheless it wouldn't have such a broad impact on the governments functioning going forward. i always use that as an example that i point to about aboe solicitor general steny up and really doing a powerful job of pushing the court tort ruling against him but in a way that was the best way for the government to lose in the case and don was just brilliant when

he argued that case. >> basically by tasha pay no attention. [laughing] so and i'll just add,, first on the on the 10th justice thing, those the nine real justices don't talk about the sc that way. one of our illustrious predecessors, the late drew days, talked about the s.g. as the 36 law clerk to justices. and i think that sort of captures the relationship and the power dynamic a little bit more accurately. but there is that kind of close relationship and it's borne partially of fact that, you know, it is a coordinate branch of government that's being represented by the solicitor general. but it's also more practically borne of the fact that you are a repeat player there. as you alluded to, the sg's in like two thirds of the court's cases. but you also have kind of institutional interest and you're going to be back up there

maybe on the same issue. i mean, during my time in the office, i probably argued four or five cases involving sort of issues arising out of the war on terror. but i also argued four or five ish cases involving to the campaign finance laws. and it's just a, you know, in in that context, when you go be back up there on similar issues in a couple of months. you have a different relationship with the court than you do if you are just there for a private company as their as their lawyer. and this this really gets to what both don and noel we're getting at, which is, you know, preparing argument for any client is difficult. i mean, you know, next next month, i'm going to be arguing a about, you know, patent law that's difficult. so so always a daunting task to get to present argument to the supreme court. but in some ways, it's an even more daunting task for the lawyers in yesterday's office, because i think they are charged

with this kind of knowledge of the broader institutional interests and priorities of the executive branch and the government. and that's why this idea of sort of losing a case the right way that doesn't really translate to private practice very well. i mean, in private practice, if lose, you lose and telling a client in private practice, well, we actually picked the best way to lose this case is that it's not that does not get you hired for the sequel. okay. but in the government, that's that's a thing because you going to be up there and if you lose know like in just to take an example and kind you know from the cases i was talking about if you lose the first case, that's a challenge to the campaign finance laws but you lose it in a way that you can win, some subsequent ones. that's a much better result for the government than losing sort of the first one in a way that makes you kind of hopeless going forward. so that really is, you know, an important part of the dynamic and it is what makes arguing cases in yesterday's office, if

anything, even a little more challenging. so when you watch an oral argument today, it's especially with lawyers like we have in front of us. it's conversational. if it's done right. is that always been the case or oral argument in front of the court? change? like what's like sort of a take us on a historical tour, paul, maybe you can start us off. sure. and you know, i mean, i love, you know, part of the reason i was so happy to come here today is because, you know, if you talk about john marshall to a supreme court advocate or a history buff and i consider myself sort of both, it's like you want to say yes as quickly as possible. and you know, one of the things just, you know, in reflecting on this, the dynamic of oral argument from the advocates perspective is kind of so much different today than it was in the time that john marshall was the chief. and, you know, back in those days, the oral arguments would spend days, big cases, and you'd

have multiple advocates for one party in the case. and they could, you know literally spend days arguing in front of the court you know i might based what i've read you know as a result of that the kind of exchanges with the justices were not kind of what you're used to in kind of the modern court where things are on the one hand much more compressed, but on the other hand are much more with the justices. and as you say, you know, it can be a conversation, can an argument, but it's very either it's very interactive with the justices and the time is tight. things are changing kind of by the day at the supreme court. you know, i used to the first decade or so, i practiced there. everything was exactly the same and nothing changed. and in in in case you would get you would 60 minutes for an argument unlike days back in the marshall era 30 minutes aside if you were appearing on behalf of the united as an amicus, you would have 10 minutes of argument time and that's it on

an issue of huge national importance. and that is the most difficult thing you can do as an advocate to have your 10 minutes to make your whole case. john roberts sort of, you know, when he was an advocate and he was in the ag's office, he likened the difference between a 30 minute argument and a ten minute argument. and the difference between being dropped with the parachute from 30,000 feet and 10,000 feet, 10 minutes, there's no for error or digress means. it's an incredibly intense sort of experience now, you know, it's changing little bit. and maybe don in no want to sort of talk about that then the other thing i will say is even in the modern era, it's changed quite a bit the past like 40 or 50 years. if you on ohioans dot org and i highly recommend it and go like listen to a big argument in a huge controversial case the seventies pick something like roe v wade or really any case from that era you will be astonished by kind of how much air time.

the lawyers have and how relatively few interjections from the justices are. and that all changed in about 1986 and maybe i'll lateral to to know and you can talk about our old boy in the great year of 1986 was when justice antonin came onto the court. and it really change the dynamics of oral argument prior to then you really have oral argument driven by the and not the justices. you get occasional question, but for the most part the lawyers had an opportunity to make their presentations. now paul's right that today things are changing, but they're changing within a limited band that is varied different than what it was like in the of chief justice marshall right now we're going from maybe what used to be a pretty tight 60 minute argument to in big cases where there are lots of parties, you know, three or 4 hours to an you're more ordinary case, probably an hour and a half back

then you would have days of argument and the justices would rarely ask any questions at all. and if you want to see a analog of what the court was like back then, you can look at some court, some of the european courts and some of the international. i had an opportunity to be part of a doj department of justice team that argued the international court of justice about 20 years ago. and we were there for a week, 8 hours a day where lawyers stood up and made speeches for 8 hours a day, not a single question from any member of the court. and if there were going to be a question and there wasn't the quite it was understood that the question would be submitted in writing the day before. and so the following day we could show up with our prepared response to their questions submitted in writing. i suspect that's lot closer to what the supreme court was like when chief justice marshall was presiding over the court compared to what it is. and when you compare it to that,

the changes that we're talking about today seem fairly, you know, they're fairly modest in going from an hour to an hour and a half, a very vigorous argument. but the big sea change, i think, between the marshall era and today's are really when scalia came onto the bench and made it a made the hot bench the standard than the exception. yeah you know i clerked on the court in 8485 so right a couple of years before justice arrived and it was not uncommon then to go for that 30 minute period with maybe two or three questions sometimes would be no. even to an average. it was quite, quite remarkable the difference and it was different. a lot of what he's do sometimes the justices would fall asleep up there because and that's an inconceivable now because there's so much going on. you know what, it is quite different but i would say i really like the fact that it's loosening up a bit now because i had felt one in that sort of strict 60 minute time frame. paul was talking about.

you know, you've got all these justices up there who are brilliant people and they really thought about the cases and they want to get their questions in. and so it was a little bit like a game show in that, you know, they have to hit a button to activate their microphone to ask question so you'd see them like hovering over the microwave, hit the button so it could get in and what as an i felt at least what it made it quite disjointed you know someone was you about this and somebody else jumps in with something here. the fact that there's this strict time limit anymore, the arguments are running somewhat longer. it kind of everybody relaxes a little more. each justice knows that he or she can get the questions answered at some point. and the argument and and i like it. i will say i like that it does tend go on a little bit too much i think. but but overall, i like it. so we're not doing the multiday arguments anymore. but do you think there's of marshall's legacy that does live on in today's supreme court maybe in you know what do you

think? well, i mean, let me start off with, you know, just there's there's lots of different ways to approach this. i mean, obviously his legacy lives on in judicial review. and, you know, that's sort of the most obvious way. all the way back to marbury. but but just to kind of you know the anecdote that i like actually even predates john marshall going on the supreme court and just shows that what a kind of iconic figure he is in the and the continuing legacy he has so when he was in the house of representatives as the representative from richmond he gave a speech on house floor on march 7th, 1800, which i think is the most legally significant speech, not politically significant, but legally significant speech ever given on the house floor. and it was in response to the robins which president adams returned and impressed seamen to

the british and he was hung by the british and this was a cause celeb. and there was emotion on. the floor of the house to censure john adams for doing this and he marshall got onto the floor and gave this lengthy speech where he defended the president's prerogative. and in the course of defending the president's prerogatives, he used this phrase about the president being the sole organ of the united states in foreign policy and so, you know, the john robbins affair, thomas nash, you get two names. you that affairs you know probably not on the top of everybody's list things they were thinking about tonight but and like at one level that affair is kind of gone into sort of the recesses. but that the language that marshall used in defending the president's prerogative picked up by the supreme court in case

in the thirties called curtis. right. and then that case to pop up sometimes attributed only to the court's decision, sometimes attributed to marshall. but that continues to sort of pop up every time there's an important separation of powers issue in the supreme court that involves the president's prerogatives in in foreign affairs and don argued a case while he was solicitor general called the task about the president's authority to essentially recognize foreign governments. and it manifested itself in a dispute, the passports and the court kind of wrestled with this, wrestled with the sort of soul organ reference and essentially ruled in favor of the government. and dan's position, but sort of cautioned people against overreading sort of that phrase and mean that phrase wouldn't be we're talking about today if john weren't john marshall, if john marshall, with all due respect to the people of richmond had just been a

representative of richmond not going on to be the great chief justice, not gone on to be this iconic figure in the law. probably that speech kind of falls into sort of the dustbin of history. but because it's marshall and, you know, even so i'll stop talking and let my colleagues get in a word in edgewise. but i'll just say, like, that's just an anecdote that that i love that just shows that like if you're brief in a case in the supreme court these days, if you can something back to john marshall i you do it and you go out of your way to do it and it has force mean you know the every one of the justices i think has just the greatest reverence for. john marshall and the chief justice, the great chief justice, if you can, even if you get to find his house of representatives speech, if you can loop it back to marshall you're halfway home and. conversely, if your opening line is chief justice marshall was wrong, you're probably all

right. you're not going to lose the right way. yeah, but but i mean, i think marshall's legacy is really in the entire structure of of of what we do the sort of high watermark the federalist party was the of the constitution. and john marshall was one of the leaders of the ratification of the constitution. after that you're pretty much saw the federalist party wane. and the republican party at the time move into ascendance with thomas jefferson. and at that point marshall's job as chief justice was to essentially defend the by high watermark of the federalist party, which was the enactment of the constitution. and one of the great things that you saw was that even as republican presidents put more and more members onto the supreme, where just where marshall saw his federalist majority disappear, he was able to convince all of those successive he was able to convince those justices with a different view

versus the federal government to appear to his viewpoint of the constitution and the federal system that is created not to keep going back to our old boss justice scalia but years ago i had an opportunity with the marine corps quantico and it was a speech that i heard him get before and it talked about if you ask a lot of people what the important parts of the constitution to the bill of rights and justice scalia's response was every banana republic has a bill of rights, most are better and more detailed and many more provisions but that's not what makes our constitution so important and so durable it's a structural parts of the constitution that the part of the constitution that was essentially the triumph of the federalist party initially it

was a republican because they wanted to prove the original was flawed so had to be amended at the outset, thefi federalist and john marshall and it's part of the original constitution. the separation of power between the three branches of the federal system between the tfederal government that ultimately folks believe would be the bone worker freedom and that's the legacies that we live with and so many of the pieces that we spoke about what are the separations horizontally between the branches and vertically between the federal government and the state. >> one other thing that we takeg for granted, was john marshall's

achievement was very ideal picking up on what ball noel referred to, when the supreme court rules on what the constitution means and says to another branch of the federal government or state you have violated the constitution, that would be the last word and that would decide the model for the country and the conclusion was a highly debated political issue for decades and decades in two ways bob noel identified. also i don't know if it's the first of its personality or intellect or both but with the big case comes out you read in the paper justice x wrote in justice why concurred and three or four descent. in marshall's time he managed a

departure from the tradition in england at the time to get the court to speak with one voice in almost every decision. so even the individual justices might have what the acronym is in the opinion spoke for the court and msa spoke unanimously and that's vitally important the contest establish that the court was going to play this role in our system of having the last role on the constitution and the fact that they were able to speak with one voice as often as they did. i think it's a very important part of marshall's legacy also. >> prior to marshall each justice would write their own opinion and figure out where each one came out to find out who one. >> let's talk about that, that is awo significant shift to spek with one voice as an institution. i thinkme it might lend itself o

something that we hear in the news like legitimacy, what would that word meant to john marshall would it have been important what does that mean to someone. >> nothing at the time legitimacy was so much the times of justice of the rules, they were probably a much more fundamental battle about our legitimacy. but at the time it wasdo not clr that the supreme court had the authorityde to declare any particular case or controversy and is unconstitutional. it was not clear that the supreme court had the authority to review a final decision out of the state supreme court, it was not clear whether the supreme court had the authority to pack the constitutionality on inactive the president.

everyone of those principles was established inon an opinion written by chief justice john marshall. so they were talking about legitimacy and a much more fundamental sense that was essential to the nation that we live in today. of course president was highly mad about h this. he was constantly complainingmp about it in the legislation to strip the courts in the jurisdiction. it was an intense conflict. in the brilliance of marshall as he's trying to establish legitimacy of the court in the institution of judicial review he picks the marbury case and the statute is unconstitutional and if p the statue that gives additional authority to the ofsupreme court for the judicia. so the brilliance of taking that

case there is nothing the other branches can do to defy this role. if you would pick and stead and active congress to give the president some great authority in the judicial opinion that the president can have the authority under anyue constitution, the question of how you will enforce that, the supreme court does not have an army the same day he picked one context where nobody could essentially do anything once he said the supreme court doesn't have the authority to exercise theri jurisdiction that the congress gave them in the judiciary act of 1789. the fact that he pick something where he was denying the court power was brilliant.

and it shows how he was playing the long game to essentially establish a power of judicial review that would be deployed more controversial circumstances. and on the point about the fmajority of opinion. it seems like a subtle point the tradition in england and for the first ten years in thesu supreme court with the opinions. marshall said we can have an opinion of the court. if you think about the difference, if you are a lawyer trying to argue a case in the lower court and are trying to get the lower court to do something that's inconsistent with the supreme court, how much easier is it if you could say there's no supreme court opinion so justice curtis said this and he said this, they don'tge map , do what you want judge whereas a majority of opinions for the court essentially boxes in the lower courts to have to follow

that opinion so part of what he was doing was legitimacy of the supreme court vis-à-vis the other branches, the same time as establishing the supreme court of the federal judicial system and he does all of that and gets his colleagues to go along there is a personal brilliance i understand it took a lot on the courtju it's really a remarkable legacy. >> i thought it was for the court across time, we decided even when it wasn't that court of those nine people. interesting, one of my favorites of marshall's, he believed in breaking bread with colleagues and collegiality and i'd be remiss if i did not point out we have generals with different residential administration that like each other and i want to

know you think that is alive and well in the office of the generalou and do you think is important? i know you do, tell us why it is important. >> is really important and one thing about the tradition of the office that every sg takes extremely seriously feels a deep obligation to sustain and protect it is a nonpartisan institution going back to some of the stuff that paul said earlier about the relationship with the office of the court in the part about that it not be seen as a partisan institution. i think it was important to all of us in thinking about 20 some odd lawyers in the office in every sg is going to hire younger lawyers to common as assistance. to really do the hiring of a nonpartisan basis.

so the office doesn't appear to be in one direction or another. this can be challenging arguing on behalf of the administration and it's going to take positions that are going to seem political and they're going to be defending them and there's going to be some measure of that but trying to create a sense of confidence in the court in the public and the rest of the executive branch but this is not a partisan operation i really import part of the job, it's part of the reason why we come out of that experience and feel like we share a sense of values. >> we really do, don and i are cocounsel in several cases and a few roles working with more than

don, i think the stability iso essential we're in an age and how corrosive our political culture has come and how vitriol the exchanges have become whether driven by politico world. we need to be the model of stability in exhibit how people ought to becu talking about and it's the most controversial issue of the day. in his if you have those people up there presenting the best argument that can be made on their own side of behalf of the justices also as a civil and

collegial body can come to theg best decision. >> were just taking pot shots at each other in the' news cameras we are not doing the administration of representing any favors and were certainly not doing the justice any favors because were not able to try to figure out what the right answer is to be the most difficult. >> i agree with that and the reason moderna went a long way because they were dealing with the difficult issues in the level of the issues i think have only gotten more momentous, last term in the supreme court and the issues that the support was dealing with in the decision to overrule with the president, roe v. wade, that put so much pressure on institution in the individual justices and i think all of the justices value

collegiality and their institutions that the court has, they don't talk about the case, i talked about the advocates they don't talk about the merits of the case and i think those kindce of practices are absoluty vital when you consider how controversial the issues that they're dealing with. just underscore, that is an important thing for the justice system but i think in the sg office particular that is also something that really, really is valued and when i was solicitor general not only do we try to hire on a nonpartisan basis but if anything i almost had a balance to hire people who had clerked for thee liberal justis because i figured already knew how justicee khalil thought, i

did not need that much help but what are the things that we all do in theo office and subsequently to prepare for the supreme court arguments is where people in the midcourt asking questions along the line of the justice would ask and if you think about that and hire people to think like half of the court you can have a lousy court because you're not going to get asked half of the hard questions. it's very important to me and i think this is a tradition of the office is to hire people across the spectrum to make sure, i do think that does pay dividends to small but important ways as office approaches issues. even if it's a politically controversial case there is a

thread of the long-term interest of the federal government and the issue and it really cuts across the administration because the republican administration with property rights a little bit more than the democratic administration. but at the end of the dayme the government is a take it or not taking of property. so you have to keep that in mind when you're considering what the government's position is in a particular case and in other areas of the law. it's really putting a premium on that that makes office function at a higher level than otherwise possibly could. another part of it, you mentioned the case against each other that paul and i had a number of cases against each other. the cases are of great importance, for me, you come out of the process with a sense of

all, people that are on thehe other side on these cases are extraordinary lawyers and it's an intimate process in the court cand arguing. i also had a sense of not only the brilliant to folks out of good faith and a commitment to the same shared sense of values, we live in a constitutional system and we make that a paramount importance and were each in our own way dedicated to the preservation of that system so it generates and adornments inspect. >> was amazing, you hear the same year after year from alumni of the office of a general

regardless of what presidential administration thaton wer serving, how do you reinforce the norms, what makes office unique, how is it handed down from one generation to the next. >> the senior deputy solicitor general in the office general for 45 years, you guys might have different views but he transmits from one generation of assistance to another and the fact within the office, the way the office of instructor coming of the solicitor general, l4, now five career deputies and then you have about 15 assistance with the solicitor general, that is the structure ofof the office, the career deputies tend to be there for a long time we slowed india administration change but these are people that dedicate their

entire career to serving in the office and that's one way the culture of the office is transmitted but it's also been part of a larger legal culture and maybe two and a certain extent the weaker culture and every one of us feels obligation to try to commit those types of values. >> also the younger lawyers also believe so if you were to come in as an sg and conduct herself an overly political manner and seemed like you're using the office with objectives, you have amo full-scale revolt among your staff you would not be able to manage it. because what those values are. >> when you started in the role of assistant general what were you expecting?

[laughter] >> i'm the wrong person to ask, by the time i was solicitor general admitted office for four years. i think what surprised me most about coming to the office when i first came into the office really was a notion that differentiated between a lawyer in private practice was how much additional knowledge you were charged with when you went up to the podium. it's like the corollary to losing the right way were winning in the right way, you are expected by the justices to really understand all of the interest of the u.s. government. when you are arguing in a private practice, they don't ask you and there is shade statutory

authority with army corps of engineers, the fact that the case involves the epa rather than the army corps vice versa is not going to stop the justices from asking you all sorts of questions about that, sometimes, we are getting case but you got asked by one of the justices, is that the state department's position. you are expected to know all of this and in some ways it is incredibly daunting but in some ways what are the glories of the office when you have a new case you called an expertise with the entire federal government and you bring into one room and you get the benefit of all of those different agencies and their expertise. i have a one antidote where i

was arguing a case to the clean water act and justice khalil was all over me about the ridiculous position of thehe united states that even the ditch was covered, i was able to tell them only because the guy in the army corps of engineers named lance would that i was able to tell justice khalil antonin scalia the erie canal is a [bleep] we think that is navigable to the united states. it is not easy to get justice scalia to take a step back. but he did. i did not come up with the answer on my own i came up with the answer, when you have the ag's office of the benefit of all of these government lawyers

and to his point the perfect embodiment if there is an ed lieber and over every government agency in their repositories with the institutional knowledge of the various agencies and that's really what you want to tap into. you want to win your case and you really want to s make sure u are vindicating the long-term interest in things change from a democratic administration to republican administration but there is a core of institutional interest that stays the same, that's what you really want to protect in the office and that does permeate the whole enterprise. >> i want to make sure we save time for questions but i want to make sure we get to the story parts. would you share your favorite moment, in the court, what your

favorite moments were, embarrassing moment. >> my f favorite moment also involved justice scalia and its sort of what he just told, he got the best of me almost every that we had in my five years as sg. there was one time when i got the best of him and i did it by using a a joke, something you always question what to do in the court and i never did except this one time. and i actually was not spontaneous it was a plan joke. i tried it out on the new courts and everybody said don't do it, i did it anyway. it was a case about the affordable k act and not about the constitutionality but the interpretation was statutory provision that had been interpreted one way would've led

to wide notot been able to function anymore and the most natural reading of the word and the statute probably -- the argument was, if you read it that way, the whole thing is going to come crashing down it's going to be a disaster and congress cannot have intended that. we knew justice scalia had an answer to that and we knew justice scalia was easy to anticipate that he was going to push forward and that's a problem congress needed to fix. so knowing that that was going to come anticipating it, we decided, when it came i was going to shrugsh my shoulders ad say this congress? we were a time of divided and dysfunctionall congress and it

actually worked, everybody in the room except justice khalil laughed and hee backed up and he was back in two minutes but that was probably my favorite mama as a lecturer. >> my favorite moment we did not have a whole lot to do with the job directly but when you're on the job you can get a little bit full of yourself with the solicitor general but every once in a while they kind of remind you you're just another guy. one of the things i like to do as sg i would sit on the corner at pennsylvania avenue with a couple of cigars and that's how i would do my work. in the summer when it got particularly hot i would walk a block down to the trump hotel, there was a tree that casts a lot of shade. you could sit in that tree and have your cigar and not be as

hot because you had shade. one day i was sitting out there with a cigar in my briefs and i needed to use the restroom so i sat my cigar down and i walked into the trump hotel and i came back out and there was a homeless man smoking my cigar. i walked out any looked at me and grinned. and i said enjoy the cigar. [laughter] >> this is not particularly funny and it's not a oral argument actually there is a alesson there which is arguingn behalf of the united states and the supreme court of the united states is the greatest thrill about being the solicitor general or the office of the solicitor general it is the point of a lot of what we do. but for every 30 minutes at the

podium therere are thousands of cases written in the process and cases that never gets argument and all of the briefing is very important and when i was in the office as a deputy. there was a challenge from the bipartisan campaign format and it was a special provision with the direct mechanism and a three-judge district court to the supreme court of the united states. these proceedings took place after the law passed there were 11 different challenges to the law that consolidated in a single case, the three-judge court produced a thousand page opinion with four different opinions for three judges, showing how dismissive and how messy this was there were 11 different petitions for review filed from that decision of the supreme court and they were all supposed to be consolidated in a

single case. we were defending the constitutionality ofe. the statute, by rule we could've filed 11 different 50 page briefs, we could've filed a motion for a 500 page brief, that sounds absurd but the justice departmentt had filed multi-hundred h page briefs in e lower court in the federal election commission that is represented in the lower court in a 500 page brief and we filed a motion with the court for permission to file a single 140 page brief which is the longest brief i've ever had my name on but the reason i use it as a war story is one of my proudest times because i think we took a case that was very unmanageable for the court and we made it manageable and we made it look more like a normal case for them and it kinda captures the

responsibility that the office deals with the supreme court, we are arguing and we want to win. sometimes we lose it we don't think we lost at the best possible way. and we curse death heaven. but sometimes we do feel like our job is to make the justice job easier in that case really is in body but the other part of the case that i liked there is a statute that i think the average republican didn't think much of in the republican solicitor general's office in the republican administration was defending the constitutionality of the law and that is another tradition of the justice department and the solicitor general in particular that builds into the nonpartisanship that i'm talking about, although there are exceptions over time for the most part the office will defend the constitutionality of acts of congress whether or not we think

they were the best thing since sliced bread from a policy matter but we make good faith arguments in the statute. that was the context here where you saw that because you have republican administration defending what is probably at the time the single most important democratic legislative initiative. so i thought the antidote would capture a lot at the office. >> now it's time for you to ask your question and i understand we have some rowing microphones. . .e. . terrific so if you all find a willing participant, okay, why don't you your first question. first off, thank you for being here and. thank you, tom, for your comments about keeping politics out of it. but the media and therefore the public always judges, frequently they say they're liberal or

they're conservative or progressive. others like the term well, he supports the constitu ation as a living document. others say, well, that he supports the constitution as a living document and another judge is an originalist or a textualist, i'd like to hear about your comments on labels. >> the danger of labels? >> and so, you know, i think what is actual-- the actual truth of the matter is is that different justices have different judicial philosopies and that's always been true on our supreme court and it will probably always be true and i think what's important is that they hold them genuinely.

i don't think they-- i don't think any justices says, well, i am going to adopt this approach to thinking about law because it will consistently generate the political results that i want. i just don't think that. i don't think any justice really is operating at that level. i might agree with-- i i mean, i might be more in tue with the judicial philosophy of some than others, but, you know, it's something that they all bring to the process, i think, in good faith, and you know, frankly, probably, i think, at least a healthy thing for the system over time to haveve those different perspectives on the court because the presence of the different perspectives and the articulation of it and the interaction of them, they tend to keep each other honest. you know, because no way of thinking about law, thinking about the constitution is, you know, free of its shortcomings

and so, i think having that kind of interaction, at least from my perspective is a good thing, but you know, my view of all of that is that it's operating at a level of good faith essentially. >> yeah, i mean, i certainly agree. i would say that there is this sort of tendency, for example, to refer to justices by the political party of the president who appointed them and all of that, and in an era when, you know, a john paul stevens or a justice suter for whom you clerked, try as a lawyer who believes everything don said, but to me a lot easier to explain it's not a one-to-one correspondence here when you had sort of justices like that and if i do sort of have a concern, it's, you know, andin i'm in enrichment and i'l play to the home crowd a little bit, but lewis powell was a justice who had a perspective that was different from some of

the other justices at that time and i think different from almost any justice on the court right now. and that was born out of the fact that he had been in practice almost his whole career and it's pretty hard to imagine a president of either party appointing a louis powell in this day or age and i don't know his exact stage, but on the older side when he was appointed. but that used to bea a good thing in a judge or, you know, a justice and now, i think it's all, but disqualifying across partisan lines. so, at the one hand, i agree with everything don said, but i also think there are a couple of, sort of modern tendencies that do take us in a direction that in my humble view is not entirely healthy. >> another question-- h >> i heard they put out request ill pens for you guys.

do they still do that? what do you do with those things? >> i'm sorry. >> oh, they put out quills when you argue a case. >> oh, quills. >> not everything has changed since. [laughter] >> i wish. >> and one of you worked for a president who was a lawyer. the other of you worked for presidents who, forgive me, may not have even heard of john marshall. humor aside, or attempted humor aside, what was it like to work for a president who at least on paper understood the process of the law? >> so. >> i guess that's directed to me. [laughter]. >> so,t' one of the things that we talked about the nature of the office, and part of preserving its reputation for

being straight shooters and being nonpartisan is actually to maintain a pretty significant degree of separation between the solicitor general and the white house. it's not complete by any means, but the idea of the solicitor general is supposed to figure out independently what the right course of action is for the united states and, you know, during my five years, i think maybe i had two conversations with president obama about legal subjects and they were situations in which he actually had a decision to make and so, there was no getting around talking to him, but that was it. i will say in those conversations it was a little bit intimidating because the guy could pull -- because he was not just a lawyer, but had been a law professor and he could pull constitutional cases out of the recesses of his

mind. it was quite amazing. surprising to those of you who are not inside the process, but i just didn't have much interaction with him. some, but not a whole lot. >> and that's by design? my design. >> and question, not sure where the microphone is. >> do you think they'll allow cameras in the supreme court and is that a good idea or a bad idea? >> yeah, so, i'll take that one. the answer is no. they won'tth and the reason the won't, i think it's their decision to make and if congress ever passes a statute that purports to mandate it, there will be an interesting constitutional question, seriously, about whether that statute is constitutional for what it's worth i'd be happy to argue that that statute would

not be constitutional, the fact that it's too much in the way that the judiciary operates its own procedures to be consistent with the separation of powers, but i'm sure, you know, a dutiful sg would defend the constitutionality of the he statute and go up the supreme court and not recuse themselves. if i were the lawyer challenging the constitutionality i'd like my chances. at least until the hypothetical statute, it's the justices' decision to make. it's hard to see from the justices' perspective what's the upside of having the sort of cameras in the court. and i will say, you know, i've already said this publicly and as an advocate, i should probably just be quiet and say nothing about this and say whatever the justices want is the best thing. personally, i don't see a particularly good government argument for why there shouldn't be cameras in the

court. what they do is just sort of too important for it to be not as accessible as sort of, you know, the congress or successful as it could be. i'm a firm believer if the court did allow cameras in the court, it would actually be good for the court's public reputation. i think if people saw the way the justices proceed. how seriously they take the case, i mean, obviously, viewership would go up unlike the high profile issues, but if a couple of parties sort of stuck around for the second case that seemed like a boring bankruptcy case, what they'd see was the justices were every bit as well prepared and engaged in those cases as they are at, in the higher profile cases. they would so the opposite of a kind of senate hearing where you have one justice, one senator presiding and everybody else is gone. like you could have -- c-span

could have a camera that shows all nine justices and they'd be there. to me there's a lot to be said for the upside of cameras in the court, but i don't get a vote and the nine people who do, i think, are unanimous that there shouldn't be cameras in the court. >> if you could have a camera that showed the proceedings as they are, then i think i might agree with you, but i worry, and i think probably a lot of the justices worry once you introduce the camera the proceedings are no longer going to be as they are. they're going to start to move something closer to like what we see in congressional, you know, debates. >> ande that's the concern and i thinkk it's a real one, but i will say, it's one that i had shared until i realized now lots of the federal courts of appeals, the level below the supreme court, they actually livestream the video of the arguments and it's not the supreme court so it's not exactly the same thing, but you know, i've argued a bunch of cases where there's been

livestream video and it didn't have in i-- it sort of forgot about it within five seconds of the arguments starting and to me, there isn't any noticeable effect at least at that level so i wonder, actually, you know, i share that concern, you know, in a theoretical way and i wonder if that's how they'll actually play out if that's how they do it. [laughter] >> well, i think we're at the end of our time together, but i just want to say thank you so much for joining us here this evening. it's been a real treat for all of us, if you'll please join me. [applause] >> american history tv, saturdays on c-span2. exploring the people and events that tell the american story. at 7 p.m. eastern, best selling author saved grand shares his

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