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 friends at the john marshall center for constitutional history and civics. i'm also pleased to serve on that board. the john marshall center. but that's not the most important reason why collaboration. these two organizations is such a natural we have shared values in a shared history after all, chief justice john marshall, as many of you know, was the very first president of this historic society, civics and history are fundamentally linked and alike, essential for an engaged citizenry.

so thrilled to present this program together, i just have to take a sidebar because just the other day i was looking at the civics study presented annually by the annenberg public policy center, the university of pennsylvania, and thinking about it in the context of having a robust about being in our in our government, they do this every year on constitution day. this national survey. and it wasn't pretty to say the least less than half less than half 7% of of us adults could name all three branches of government. only one in four respondents could name a single branch asked to name the rights protected by the first amendment people at a loss less than one in four 24% could name freedom of religion. this is a time for educational

organizations like the mhc, like the john marshall center, to keep everything we can, everything we can to inform and engage virginians, americans and everyone who listen, who is fortunate enough to be in this wonderful country. so we're going to keep all 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 on these very topics tonight. so thank you to all of the members of the virginia museum of history and culture, also to the members of the joe marshall center for empowering us to do this collective good work. it's my pleasure to make for tonight's program to invite my fellow trustee of the joe marshall center forward paul harris to introduce our speakers. thank you so much. for. good evening. good evening. i have the distinct privilege this evening of introducing our

distinguished moderator and our distinguished panelists, two of whom are former colleagues from the department of justice and a new friend. and don verrilli, delighted to have all of them with us this evening. i'll begin by introducing our distinguished moderator, professor allison or larsen is a professor of law and director of the william and mary institute of the bill of law. since joining the william and mary law faculty in 2010, professor larsen has received many awards honoring her teaching and scholarship, including the statewide outstanding faculty award in the rising star category. this is virginia's highest faculty honor. she is a scholar of constitutional law and legal institutions with focus on how information dynamics affect both. her work on facts that. finding at the supreme court has

been featured multiple times in the new york times. the washington and the wall street journal, and was also the subject of her testimony. the senate judiciary committee. in april 2002nd 2021. professor larsen has published in the nation's top law reviews and her work has been cited by four different u.s. courts of appeals. she appeared with stephen colbert as a guest on the colbert report to discuss her scholarship. she also has a little fun. her scholarship on supreme court amicus briefs a subject on which she has also testified before the presidential commission on supreme court reform. professor larsen earned her bachelor of arts degree from william and mary and her law degree from the university virginia, where she grad graduated first in her class after law school, professor larsen clerked for judge j. wilkinson of the u.s. court of appeals for the fourth circuit

and for justice david souter of united states supreme court. professor larsen, thank you for. i will introduce panelists in the order in which they serve as solicitor general paul. paul d clement was the 43rd solicitor general of the united states. mr. clement is a partner at the claimant and murphy law firm and distinguish lecturer and in law at the georgetown university law center. mr. clement served as solicitor general from june 2005 until june 2008, before his confirmation as solicitor general. mr. clement served as acting solicitor general 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 focused on appellate matters, constitutional litigation and strategic counseling. represents a broad array of clients the supreme court and in federal and state appellate courts. last year, he successfully argued supreme court cases involving significant issues of energy regulation, statute jury interpretation, state sovereign immunity and article three standing and successfully argued a trademark appeal in fourth circuit and the constitution and all appeal before the en banc 11th circuit. mr.. clement, his bachelor of science degree, summa cum laude from george town university school of foreign service, a 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 clerked for judge laurence h of the us court 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 us subcommittee on the constitution on federalism and property rights. please help me welcome mr. clement. to the corporate governance. donald beaver junior was the 46th solicitor general of the united. mr. verrilli is a partner in the law firm tolles and olson and the founder of its washington, dc office. mr. verrilli is also a lecturer law at columbia law school, where he teaches classes on the first amendment and the supreme court. previously, he taught 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 united states from june 2011 to june 2016, before serving as solicitor general. mr. verrilli served as deputy white house and previously as associate deputy attorney general in the united states department of justice. in those positions, he counsel the president obama cabinet secretaries and other senior government officials on a wide range of legal issues involving national security, economic regulation, domestic policy and the scope of executive and authority. mr. verrilli earned his bachelor of arts degree cum laude from the yale. from yale. yale university and his juris doctor degree with honors from columbia law school where he was editor in chief of the columbia

law review. please help me welcome mr. verrilli. and but certainly not least noel francisco was the 47th solicitor general of the united states. mr. francisco is the partner in charge of the washington, an office of the jones de law firm. mr. francisco served as solicitor general from 2017 to 2020. he represents clients in a broad array of civil and criminal litigation challenges to federal and state laws and regulations and government. invest negations and enforcement actions. the matters he handles often have significant public policy implications, including in the areas of global climate change opioids, asbestos, tobacco, firearms health care, administrative law free speech,

religious liberty and separation of powers. he earned his bachelor of arts degree in economics with honors from the university of chicago and his juris doctor with high, also from the university of chicago. after law school, mr. francisco served as a law clerk to justice antonin scalia, the united states supreme court. and before that he served as a law clerk to judge j. michael on the us court of appeals for the fourth circuit. later mr. francisco served as deputy assistant attorney general in the office of legal counsel at the us department of justice, and prior to that as associate counsel to the president of the united states. please help me welcome mr. francisco. ali over to you. all right. thank you so much, paul. well, y'all are in for a treat tonight, have you? have you ever seen when they do

a hollywood promo and they say all star? this is an all star cast of is okay with a lot of lawyers. so you heard from paul that these are three former solicitor general of the united. so i thought we'd just give you a little bit of context for why that's such a big deal and what that means. the office of the solicitor general supervise and conduct litigation on behalf of the united states in front of the us court. and they are very busy because approximately two thirds of the cases that the supreme court hears on the merits involve the united states. so the s.g. that's what we say, the s.g., the solicitor general, has been called the 10th justice and the reason for that is because that office has developed over time a reputation of fairness and a

reliability. i know when i clerk there we always picked up the debris first. that's the brief. and so i think it's really important. and what we're going to do tonight is talk a little bit about the history of that office. and here's some more stories along the way. i hope. so let's just start off with some some basics. what's it what's it like to prepare for a supreme court r oral argument today? and then maybe we can draw some comparisons to earlier years. i'm guessing it's kind of hard. what's the hardest part about it. huh? well, so, you know, one, it's hard all the way around, but you know, the hardest part about it is, at least for me, there are cases when you're solicitor general that you have to argue where you know you are going to lose. you know, you've got it. you've got to go in there and represent the position united states. but, you know, you're going to lose and you might well get your head beaten in and like but

can't go up to the lectern thinking that way. so actually getting yourself in the position where by the time you stand up there to argue case, you actually believe that there's complete deadlock there of a case that you have to argue your right about. that's always for me was the was probably the most challenging of it just trying to deal with that how. do you all agree that that is certainly a big part of it? the first thing i'd say is that, you know, often people refer to the solicitor general as the temp justice. i have never heard a supreme court justice that's has become justice. but what don said is right. one of the parts of being the solicitor general is that sometime, you know, you're going to you've got a case 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 the to a way to rule against you

that's going to do the least amount of damage to the government's institutional and actually the very case i ever argued in the supreme court was against don and it was big separation of powers case where it was pretty clear that the court was leaning favor of my client on the bottom line position. it had to do with the president's recess appointment authority, but there were two ways that i could win that case. one was a very broad rule that would have called into question a lot of recess appointments. and the other was a very narrow rule where my client would have one, but nonetheless it wouldn't have a broad impact on the government. on the government's functioning going forward and i always use that as an example that i point to about a solicitor general standing up in real he doing a powerful job of pushing the court towards against him. but in a way that was the best for the government to lose in

that case and done was just brilliant when he when he argued that basically by saying pay no attention to that issue. you know, if you want to rule against me on that, i'm okay with that. i would say those words. but and and and we got precisely zero votes on that issue. so and i'll just add, you know, 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 wa 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 justice from a different political party who had a very different view of the role of the states versus the federal government to adhere to his viewpoint on what the original constitutional meant and the federal system that it created to to to not to keep harping back to our old boss, justice scalia. but years ago, i had an opportunity to attend a law day speech that he gave it to the marine corps at quantico. and it was a speech that i'd heard him give before. and he talked about how, if you ask a lot of people what the important parts are about the constitution, go straight to the bill of rights and justice scalia's response was, you know, every banana republic has a bill of rights. most of them are better than ours. they're more detailed. they have many more provisions. but that's not makes our constitution so important and so durable. and it's rather the structural parts of the constitution. that's the part of the

constitution. and that was essentially the of the federalist party initially. it was the republicans that were trying to impose amendments on the constitution right away, they wanted to prove that the original constitution was so fatally flawed that it had to be amended at the outset and it was the federalists. and john who led the fight against those original amendments. they came later. but those original amendments as, part of the original constitution, and it's those structural protections, the separation of powers between the three branches and the federal system, the separation between federal government and the states that ultimately folks like marshall believed would be the bulwark of freedom. and that's, i think, the legacy that we live with. you know, so many of the cases that we fight about are what those separations but the, you know, horizontally between the branches and vertically between the federal government and the states. yeah. and you know one other thing

that we take for granted, but was john marshall achievement was the very idea you're picking up on what paul and noel referred to that when the supreme court rules on a matter of what the constitution means and says to another branch of the federal government, or says to a state, what you have done violates the constitu, and that that actually would be the last word, and that would the matter for the country. that was, you know, far from a foregone conclusion. that was a hotly debated political and jurisprudential issue through decades and decades and through the ways that paul and noel identified. and then also, i think through i don't know whether it's the force of his personality, the force of it's his intellect or both. but unlike now, you know, now when a big case comes out, you know, you read in the paper, well, justice x wrote the majority opinion and justice concurred. and there were four, three or four dissents and in marshall's

time managed departure from the tradition in england at the time to get the court to speak with voice. and in almost every decision so that even where individual justices might have a different view about what right outcome was, the opinions spoke for the court and almost spoke unanimously, and that was really vitally important in this contest to establish that the court actually was going to play this role in our system of having the last word on the constitution that that fact that they were able to speak with one voice as often as they did was really important to that. and that i do think it's a very important part of marshall's legacy also, and actually prior to marshall, i think that each justice would just write their own opinion. yeah, and you kind of had to read them and figure out where each one came out to, to to find out what. yeah well, let's talk about that a little bit. that's a significa and shift the

word to speak one one voice as an institution. i think it might lend to something we hear the news a lot, which is the idea of like legitimacy, the court's legitimacy. what that word have meant to john marshall it like. would it have been important to him? what what does that mean to someone, a student of marshall's. i. i mean, i don't think that at the time legitimacy went to so much, you know, was it if you know what the seven justices at the time, six justices were there was no for two or five. they they were fighting a much more fundamentally fundamental battle about legitimacy. at the time it wasn't clear, as don said, that the supreme court had the authority to, you know, declare, at least in particular case or controversy, than act of congress was unconstitutional it wasn't clear that the supreme court had the authority to review a final decision of a state supreme court. it wasn't clear whether the supreme court had the authority to pass on the constitutionality

of an act of the president. every one of those principles was established in an opinion written by chief justice john marshall. so they were talking about legitimacy in a much more fundamental sense that, was, you know, essential to, you know, to the nation that we live in today. and and of course, president jefferson was a howling, mad about all of this. i mean, he was constantly complaining about it and trying to get congress to enact legislation to strip the court's authority, its jurisdiction. and so, you know, it was a it an extraordinarily intense conflict. and the brilliance of marshall is as he's trying to establish the legitimacy of the court and the institution of judicial review, he picks the marbury case and the statute that he strikes down. it's uncommon stitution is a statute that purported to give additional to the supreme court

a statute of the judiciary act. and so the brilliance of picking that to establish judicial review is there's nothing. the other branches can do about it or even really defy his will if he had picked instead a act of congress purported to give the president some great authority and then issued a judicial opinion that said, well, the president can't that authority under our constitution then the question of how are you going to enforce john marshall would been you know because the supreme court doesn't an army it's the as the saying goes so so he picked the one context where nobody could essentially can do anything once he said that the supreme court doesn't have the authority exercise the kind of mandamus jurisdiction that the congress to give them in the judiciary act of 1789. so this the fact that he picked something where he was the court

power was brilliant and and it just shows how he was playing the long game to essentially establish a power of judicial review that would eventually be deployed in more controversial circumstances and then just alley on the on point about the majority of opinions. you know it seems like a subtle point, right? you know, the kind of tradition in england. and for the first ten years of the supreme court is these what they call the sarri item opinions. but and then marshall says, no, we can have an opinion of the court. and if you just think about sort of the difference if you're a lawyer trying to argue a case in the lower courts and you're trying to get the lower courts to do something that's incorrect with what the supreme court said, how much easier is it if you can say, well, there's no supreme court opinion? and, you know, justice curtis said this and just so erode said this and, they don't map up and so do what you want, judge. whereas when there's a majority opinion, the court that kind of

essentially backs is in the at least the lower courts to have to that opinion so part of what he was doing is establishing the legitimate of the supreme court. these are v the other branches. but at the same time he's establishing the supreme court as the pinnacle of a federal judicial system. and, you know, does all of that and gets his colleagues go along, you there's just personal brilliance. i understand? it took a lot of madeira. yeah. served his fellow justices that also help but but you know it's just what a remarkable legacy. yeah i it's also it's for the court across time so when they they don't say they say we decided even it wasn't that court those nine people which is interesting. so let's talk about madeira for a second. now, one of my one of my favorite legacies of marshall's, he believed in breaking bread with colleagues and the importance of collegiality. and i would be remiss if i didn't point out we have former

solicitor generals different, presidential administrations who like each other. and i kind of i guess i to know, do you think that is and well at the court in the in the office of the solicitor general. and do you think it's important? i know you do. so tell us why. important? yeah. you know, it's really important. and one thing about the tradition of the office is that that every sg takes extremely seriously and feels that the public mission to sustain and protect is that it's a nonpartisan institution. it's part going back to some of the stuff paul said earlier about the relationship with the the office with the court that important part of that is that it not be seen as a partizan institution. and so it was i think, important to all of us in thinking about, you know, there's 20 some odd lawyers in the office and every sg is going to hire some number

of younger lawyers to come in as assistants to really do that. hiring on a nonpartisan basis so that the office doesn't appear to be tilted in one political direction or, another. and to try it now and this can be challenging, of course, because you're arguing cases in front of the court, behalf of an administration. that administration is going to take a policy position that are going to seem very political and the sg is going to be defending them. so there's going to be some measure of that. but trying to create a sense of confidence in the court and in the public as as in the rest of the executive branch, that this is not a partizan operation. it really part of the job. and i think then is part of the reason why we all come out of that experience and feel like we we share a sense of values about. and i mean, we really do each other. donna and i are co-counsel in several cases now, and there

there are few lawyers in dc that i enjoy working more than that, than i think that the civility that you're your finger on is essential. we're in a day and age. you don't have to look far to see how corrosive our political culture has become and how vitriolic the exchanges have become. whether it's driven by political the political world, or whether it's driven by tv news, i have no idea. but one thing that to me has always been a central important about the legal profession is that we need to be a model of civility. we need to exhibit how people ought to be talking about these very difficult issues because every one of us has had to argue the most controversial issues of the day when we were in the job of solicitor general and the only way to effectively resolve those kinds of very difficult issues is if you have people up there very civilly presenting the best arguments that can be made on their own side's behalf,

so that the justices also acting as a civil and collegial body can come to the best decision if we're just taking pot shots at each other and trying to posture for the cameras, we're not doing the the administration that we're representing any favors, and we're certainly not doing the justices any favors because not able to try to figure out what the right answer is to these most difficult issues. now, i mean, i agree that and, you know, the you know, the reason the madero went a long way in marshall's day is because, you know, they were they were dealing with these kind of, you know, difficult issues. but, you know, the level of the issues, i think, only gotten sort of more momentous. you know, if you think about just, you know, last term in the supreme court and, some of the issues that the court was dealing with and, you know, the decision whether to overrule one of its precedents, roe v wade, i mean, that puts so much pressure on the institution and on of,

you know, the individual justices. and i do think that, you know, all the justices sort of value the values of collegial quality. there are institutions that the court has. you know, they have lunch after argument. they don't talk about the case. i hear they talk sometimes about the advocates, but i they don't talk about the merits of the case. and i think those kind of practices are absolutely vital, especially when you consider how controversial the issues that they're that dealing with. and just to underscore, you know, point don made, i do think, you know, you know, you know that's an important thing for the justices. but i do think that, you know, in the series office in particular, that is also something that really, really is valued. and, you know, when i was solicitor general, you know, not only did we try to hire on a nonpartisan basis, but like, if anything, you know, i almost had a bias to kind of try to hire people who had clerked for some

of the more liberal justices because i figured i already knew how justice scalia thought. like i didn't really need that much on that. but like, you know, one of the things that we all do, both in the office subsequently to prepare for supreme court arguments, is to have moot courts where people in your moot court, you know, ask you questions, the lines that the justices would ask. and if you sort of think about that, if you sort of just as the sg would hire and just people that think like half the you're going to have really lousy moot courts because you're not going to get asked half the hard questions. and so, you know, i was i was very important to me. and i think this is just a tradition of the office to sort hire people sort of across the spectrum to make sure it's good for the office, but it's good in the short run to just get better, moot courts that way. so it's and do think that does you really pay dividends in lots of sort of small but important ways in terms of just kind of the way the office approaches

issues because even if it's a very politically controversial case there's a thread the long term interest of the federal government in the issue and you know and it really cuts across administrations. right. because, you know, a republican administration might kind of like property rights a little bit more than a democratic administration. but at the end of the day, the government is a taker of property, not a take of property. and so, you know, you kind of have to keep that in mind, as you're considering what the government's position is in a particular case. and, you know, so to an other areas of the law. so so i think, you know, really putting a premium that makes the office function at a higher level than it otherwise possibly. you know, if you're just maybe one more, you know, another another part of it, too, is that, you know, mentioned that he and i had a case against each other. paul and i have had a number of cases against each other. and there were, you know, cases of really great importance and to actually for me and i

suspect, we all share this. you come out of that process where sort of with a sense of awe, you know, that these people that are on the other side of you in these cases are extraordinary lawyers. and then, you know, it's kind of a, you know, a sort of an intimate process being in the court and arguing and, you know, i also came away with with from it with a sense of, you know, not only about the brilliance these two folks here as, lawyers, but of good faith and that of their commitment to sort of the same shared sense of values. you know, we live in a constitutional system. we make that a matter of paramount importance. we are all in our each in our own way, dedicated to to the preservation of that system and. so that just just generates an enormous reservoir respect. what's amazing to me is you hear that same refrain year after

year from alumni of the office of the solicitor general, regardless of which presidential administration they were serving and what how do you like those norms? like what makes that office unique? how, how or how is it handed down from one generation to the next? it's going to ed kneedler. you know, i was he's the deputy solicitor general in the office. he's been there for what? how many? 45 years now? 40 years. and he is it you might have different views, but to me, there's this ed neither he transmits the culture from one generation of assistance to another. and the fact that within that office you have the way the office is structures you've got the solicitor general you've got for five career deputies and then you've got about 60 assistance to the solicitor general. that's the structure of the office. the career deputies tend to be there for a long time. folks like us, we flowed in for

a few years. the administrations change, but these are people who dedicate their entire careers to serving in that office. and that's one way that i think the culture of the office is transmitted, but it's also just being part of a larger legal and maybe being into, to a certain extent, a leader within that legal culture. i think every one of us feels the obligation to transmit those types of values. there also. you know, the the younger lawyers in the office really believe it. and so if you were to come in as an sg and conduct yourself a in a overtly political or seem like you were using the office to advance partizan objectives, you'd have like a full scale revolt among your, among your staff. you wouldn't, you wouldn't be able to manage it. it just would, it wouldn't work because those values really are ingrained ingrained. did anything surprise you when you started the role of solicitor general, anything you

weren't expecting. i mean, you know, it's i'm the wrong person to ask because by the time i was solicitor general, i did that office for four years. i think surprised me most, though, about coming into the office. when i first came into the office really was this notion that what really differentiated it from being a lawyer in private practice was how much additional knowledge. you were charged with when you went up to the podium because you know in the it's like the corollary to kind of losing the right way or winning in the the right way is you know you are expected by the justices to really understand all of the various far flung interests of the us government. and so, you know, when you're when you're arguing in a private practice like they don't ask you about some other aspect of the corporation that don't know anything about like they stick to your, you know, the siloed information. but when you're up there in the

united states, like if you're arguing a case about the environmental protection agency and there's some shared statutory authority with the army corps of engineers, the fact that the case involves, the epa, rather than the army corps or vice versa, is not going to stop the justices from asking you. you all sorts of questions about that i mean, you know sometimes you know, they will you know you know essentially i mean i think we argued a case where you got asked by one of the justices, you know, is is that the state department's position? i mean, you know, you get asked like you are expected to know kind of all of this and and in some ways incredibly daunting. but in some ways when one of the really glories of the office is you get a new case, you sort of, you know, call in the expertise across the entire sort of federal and you bring it into room and you get the benefit of all of those kind of different sort of, you know, agency is in

their expertise. you know, i one anecdote i think we're not in the war story part of this but i'd add one anecdote where you know i was arguing a case the sort of jurisdictional reach, the clean water act and justice scalia all over me about sort of, you know, the ridiculous position of the united states that, you know, even you know, even a ditch is covered. and, you know, i was able to tell him only because i'm a guy in the army corps of engineers named lance wood told me this in a moot court, but i was able to tell justice scalia, well, you know, actually, technically. justice scalia the erie canal is a ditch and i think we all think that's part of the navigable waterways of the united states. right. and it's it's not easy to get justice scalia to take a stab at that. but what he did and and you know, that's like, you know, i didn't come up with that answer on my own. i came up with that answer because, you know, in the ag's office, you have the benefit of

all these. you know, these these government lawyers and to to noel's, you know the kind of the ethos, the office like ed kneedler is like the perfect embodiment of it. but there's an ed kneedler in almost every government agency, and they also are these repositories of kind of, you know, kind of the institutional knowledge of these various agencies. and that's the office. that's really what you want to tap into because you want to win your case, but you really want make sure that you are kind of vindicated in the long term interests know there's, you know, things change from a democratic administration to a republican administration, but there's like this kind of core of institutional interest that stays the same. and that's that's what you really want to protect in the office. and that does, i think, kind of permeate the whole enterprise. i want to make sure we save time for questions, but i also want to make sure we get to the war

stories part. so would you like to share, i guess, one of your favorite moments either in the court or as asg, one of one of your favorite moments or embarrassing moment or whatever you want to share with us. stars, they're just like us. yeah. so i plenty of embarrassing was my favorite moment also involved justice scalia and it was it was sort of analogous to the anecdote paul just told because it was, you know, he got the best of me almost every exchange we had for my five years as asg, but there was one time when i got the best of him, and i did it by using a joke which is something that, you know, you're always cautioned not to do in the court. and i never do except this one time and i and i actually wasn't spontaneous a planned joke. i tried it out in all the courts and everyone said, don't do it, don't do it. i did it anyway. it was in a case called king against burwell, which was about the affordable care act, and it was about a particular not about the constitutionality of it, but an interpretation of a statutory

provision that had it been interpreted one way, would have led the law really not being able to function anymore. and the reason that was natural reading of the words in the statute probably did not. we're not so good for the government. and so the argument that we were making was she's you know, if you if you read it that way, the whole thing's going to come crashing down. it's going to be a disaster. and congress can't possibly have intended that. and we knew that justice, you know, there's a as an answer to that line of argument and we knew scalia it was easy to anticipate he was going to push forward the alternative point of view, which is, well, that's the problem. congress step in and fix it. and so knowing that that was to come, we're anticipating i decided that when it came i was going do the filing. i was going to shrug my shoulders and go, well, this congress. oh, no, no.

because, you know, we were at a time of of divided and dysfunctional congress as we often are. and it actually worked. you know, everyone everyone in the courtroom except justice scalia left and and he kind of backed off. you know, he was back at me again in about minutes. but but that was probably my favorite moment at the lectern. you know, my favorite moment really have a whole lot to do with doing the job directly, but it's those things that happen. you know, you're in the job and you can kind of get a little bit full of yourself. you think, oh, i'm the solicitor general. but every once in a while something happens that kind of reminds you that you're another you're just another guy, right? and so one of the things i like to do is asg was i would sit out on the corner 10th and pennsylvania avenue with a pile of briefs and a couple of cigars and how i would do my work in summer when it got particularly, i'd walk a block down to right in front of the trump hotel. there was a tree that cast a lot of shade, so you could sit in

that tree and have your cigar and not be as hot because you some shade. so one day i was sitting out there with a cigar in my briefs and i needed to use the restroom. so i set my cigar down. i walked into the trump hotel and i came back out and there was this homeless man sitting there smoking cigar. and as i walked out, he just looked at me and grabbed and i said, enjoy the cigar. i went back into the office and middle of the. i don't really to file. so let me let me just tell one more story that's not it's not funny and it's not about oral argument and it, you know, it's it's there's a lesson there too, which is, you know, arguing on behalf of the united states in the supreme court of the united states is the greatest thrill about the solicitor general or the office of the solicitor

general. and it's a focal point of a lot what we do. but for every 30 minutes at the podium there, thousands of pages of briefs that are written, including in the cert process. yes. in cases that never get to argument, all of that briefing is very important. and when i was in the office as a deputy, actually we had there was a challenge to the mccain feingold or bipartisan campaign reform act. and there was a special provision in the law that created a direct review mechanism to go right from a three judge district court to the supreme court of the united states. and so these proceedings took place after the law passed. there were like 11 different challenges to the law that were consolidated in a single case. the three judge court produced a thousand page opinion with four different opinions for three judges to just show and kind of how divisive and kind of messy this was there were 11 different

petitions review filed from that decision to the supreme court, and they were all supposed to be consolidated through in a single case and we were defending the constitution finality of the statute. and by rule, we could have filed 11 different 50 page briefs. we could have filed a motion for 500 page brief that sounds absurd, but the justice department had filed, you know, multiple hundred page briefs in in the lower court. and the federal election commission was separately represented in the lower court, and they filed a hundred page briefs and filed a motion with the court for permission to file a single 140 page brief, which is still the brief i've ever had. my name on. but, but, but we, you know, the reason i use it as kind of a war story is i think one of my kind of proudest times in the series office, because i think we took a case that was very unmanageable. the court and we made it manageable them we made it look

more like a normal case to them. and it kind of captures the responsibility that the office, i think, feels to the supreme court. we're arguing in front of them. we want to win. sometimes we lose and we don't think we lost in the best possible way. and we curse death heaven with our fruitless cries. but sometimes, you know, we really do sort of feel like, you know, our is to make the justices jobs and that that that sort of case really embody that. the other part of the case i really liked is that was the statute that i think your average republican didn't think much. and the republican solicitor general's office in a republican administration was defending the constitutionality of the law. and that's another kind of tradition of the justice department and the solicitor general's office in particular. that sort of builds some of the nonpartisanship that don was talking about, which is although there are exceptions, you know, over over time, for the most

part, the office will defend the constitutional of acts of congress, whether or not we think they were the best since sliced bread from a policy matter. but we will we will make good faith in defense of the statute. and that was context here, where you really saw that because, you know, you had the republican defending what was probably at the time the single most important democrat legislative initiative. so i thought that that anecdote really captured a lot about the office. and so now it's time for you to ask your questions. now, i understand we have some roving microphones. that is that the right. so you okay. here's one. this is sort of on either side. okay. oh, great. okay, 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 another judge is an originalist or a textualist. i'd like to hear any and all of your comments about labels. that's sort of the danger of labels, i guess i will answer. yeah, sure. i'm happy to start. so, you know, i think what's actually the actual truth of the matter, i think, is that different justices have different judicial philosophies and that's always been true on our supreme court and it will always be true.

and i think what's important is that they that they hold them genuinely, i don't think that they i don't think any justices says, well, i 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 mean, i might be more in tune with the judicial philosophy of some than others. but you it's something that they all bring to the process. i think, in good faith and you know, frankly we probably i think at least a healthy thing for the system over time to have different perspectives on the court because the the the presence of the different perspect gives and the articulation of it and the interaction of them, they, they tend to keep other honest, you know, and because, you know, no way of thinking law or thinking

about the constitution, you know, free of 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 that is that it's it's it's operating at a level of good faith, essentially. yeah. i mean, i certainly agree. i would say, though, like, you know, 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, a justice souter, for whom you clerked, were republican appointees, it was a lot easier to try a lawyer who believes, you know, everything don said. but to me, you know, it's a lot easier. explain that. there's not a 1 to 1 correspondence here. when you had sort of justices like that. and if i do sort of have a concern, it's, you know, and i'm in richmond, so i'll play to the home crowd a little bit. but like, you know, i mean,

lewis, you know, was a justice who had a perspective that was different from some of the other justices at that time and i think different almost any justice on the court right now. and that was borne out of the fact that he had been in practice almost his whole career and pretty hard to imagine a president of either party appointing a lewis at this day and age for no other reason than i don't know his exact age. but lewis powell is on the older side. when he was appointed. and, you know, that used to be a good thing in a or a justice. and now i think it's all but disqualifying across partizan lines and so so you know at the one hand i agree with everything don said, but i also think are a couple of sort of modern tendencies that do take us in a direction that, you know, in my humble view, is not entirely

healthy. another question i heard put out oh, i heard they put out pens for you guys. do they still do that? and what do you do with those things as well? so i'm oh they they put out quill. you know when you argue a case they put out quill. yeah. you know not everything's changed since your. department you're out to. i wish one of you worked for president who was a lawyer. the other of you worked for president to forgive me. may i've even heard of john marshall. humor aside or attempted humor aside, what was it like to? work for a president who at least paper understood the process of the law. so i guess that's to me. so you know, it's interesting one of the things what we about the nature of the office and

part of preserving its reputation for being straight shooters and being non partizan is actually to maintain a pretty significant degree of separation. the solicitor general, the white house, it's not not complete by any means, but the idea a solicitor general supposed to figure independently what the right course action is for the united states and, you know, during my five years, i think i, i don't know, maybe i had to 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 that was it. now, i will say those conversations, it was a little bit intimidating. the guy could pull it because he was not just a lawyer. he had been a law professor and

he could pull constitutional cases out of the recesses of. his mind, you know, it was quite amazing. but but, you know, it's sort of i suppose surprising to those who aren't sort of inside the process, but i just didn't have very much interaction with them. so, you know, some but but but not a whole lot. and that's by design. yeah. and that's by design, right. so the question i'm not sure the microphone, although you think they ever will allow cameras in the supreme court. oh and that a good idea or a bad idea? what would justice souter say? yeah. so, i mean, i'll take that. i mean, the answer is no. i mean, they won't. and the reason won't is because i think it's their decision to make now, when congress if congress ever passes 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 statute would not be constituted, know that that gets too much into the way that the judiciary operates its own procedures to be consist with the separation of powers. but i'm sure you know, a beautiful segue would defend the constitutionality that statute and it could go the way up to the court and i think there's a rule of necessity would say they would not recuse themselves and guess if i were the lawyer challenging, the constitutionality of the statute, i'd like my chances. but but but even apart from the hypothetical statute, at least until the hypothetical statute, it's the justices to make it's it's hard to see from the justice perspective. what's the upside of having the sort of cameras in the court? i will say, you know, i've already said this publicly. you know, as an advocate, i should probably just be quiet and say nothing about this and say whatever the justices want

is the best. personally, though, i actually 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 two important for it to be not as accessible as sort of you, the congress or really it's accessible. it sort of could be. and i also am a firm believer that if the court did allow cameras in the court. it would actually be good for the courts, public reputation. i think if people saw the way that the justices perceive and how seriously they take the case, i mean, obviously, viewership go up on the high profile issues. but if a couple of hardy souls sort of stuck around for the second case, that seemed like a really boring bankruptcy case. what they would see that the justices were every bit as well prepared and it's engaged in those cases as they are at, you know, in the higher profile cases, they would see kind of the opposite of a kind of senate hearing where, you know, you

have one justice, one senator presiding and everybody else is gone. like, you know, you could have c-span can have a camera that showed all nine justices and they'd all be there. so there there is to me, there's a lot to be said for the upsides of cameras in the court but i don't get a vote. and the nine people who do i think unanimous that there shouldn't cameras in the court if you could 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 that once you introduce the camera, the proceedings are no longer going be as they are. they're to start to move something closer to like what we see in congressional debates. you know, and that's the concern and i think it's a real one. but i will say it's one that i had shared until i realized what and now lots of the federal courts of appeals, the level below the supreme court, they actually live stream the video of their of the arguments and not the supreme court.

so it's not exactly the same thing. but, you know, i've argued a bunch of cases now where there's been live stream video and it it didn't have any i sort of forgot about it within about 5 seconds of the arguments starting and to me there isn't any noticeable effect at least at that level you know so i wonder actually you know i share that concern, you know, in a theoretical but i just wonder if that's how it will actually play if they do it. but we'll never know. yeah, we'll hope so. well, i think we're at the end, our time together. but i just want to say thank so much for joining us here this evening. it's been a real treat for all of us. if you please join me in helping.

good afternoon, everyone. as you continue to enjoy your dessert, i'd like to begin our program because we have a very special program