historic relationship between african-americans and the gop. he is our guest sunday night on c-span's "q&a". . . a forum on the role of solicitor general with three men who held the job. this discussion was held at the supreme court in washington d.c. on tuesday. first, justice anthony kennedy. [applause]

>> thank you, and good evening. welcome. thank you very much for the work you do, that all of you do for the supreme court historical society. one of the fascinating aspects of a great institution is that you learned over time the place you have in it. it is not apparent to you at the outset. and the historical society is of immense importance, in part because it reminds of the justices of what they must learn in order to understand their role. your work is very, very important. sometimes people ask me, are you nervous before you go on the bench? the answer is no. sometimes those of you who

teach will hear teachers tell students, well, it is just as hard to give the exam as it is to take it. do not believe that. and it is the same way about arguing cases. but my colleague not long ago made the comment that although he agreed with me that we do not feel nervous before go on the bench, we feel that way before we go into conference. we have to present and argued nine cases, and you want to be prepared and do not want to say something incorrect or to be criticized by colleagues by making an error in analysis, even if they disagree. that is the closest we can get to the feeding of tension and anticipation come and

professional concern and professional care that attorneys must feel arguing before this court. not long ago i was in sacramento, calif., my former home. as i was walking up the steps of this court house where i used to try cases, my heart began to beat. it is a great pleasure for us, always, to have a solicitor general of the united states appear before this podium. they know how to help us. they know what is a real question and what is sometimes a question directed more at our colleagues that at them, and they know and understand that.

each of these members of this panel had not only been in the solicitor general's office, but before the court arguing a case is, and i cannot tell you how important it is to have excellent attorneys, and the fact that they have held this office and distinguished themselves has contributed immeasurably to the traditions and excellence of this court. this is my opportunity to thank each of you for the contribution that you have made and continue to make as distinguished members of this court. a distinguished professor at yale has argued 26 cases before this court and our report -- the chief justice's -- argued before three different chief justices. he is an editor of moore's

federal practice. kenneth starr has argued 36 cases before this court and is now a professor of law at pepperdine university. ñrkenneth starr was a member of the judiciary. we lost him when he answered the call to public service to go into the justice department and become solicitor general of the united states, and he was warren burger's law clerk, and has his own book about the court, "first among equals at." -- "first among equals." paul has passed the 50 mark. he was here when i was a clerk, and is a partner at king and spalding.

mr. johan is managing partner of meyer brown and a contributing editor of supreme court practice. i am not sure it is delivered to keep that in one volume. it is getting bigger. but the supreme court practice book that mr. co-edits, he has great experience because he has been solicitor general of the united states and argued 40 cases before the court. back at the have this experience -- the fact that he has this experience has contributed to that volume. there are things we should not question. but what those things that is not questioned and accepted as

authorial is the book on supreme court practice, and it is immensely helpful. i'm going to turn the proceedings over to our contributors. thank you very much for your contributions to the law, and for being here this evening. thank you. [applause] >> thank you, and good evening. i'm a member of the board of trustees of the supreme court historical society and the chairman of the program committee. that committee oversees development and execution of the society's many educational outreach efforts. tonight's event is a premier example of the society's worked

to expand reach beyond 6000 members. in 1991, the white house historical association, the united states capitol historical society, and the supreme court joined together to develop a national heritage lecture. on a rotating basis, each organization hosts the lecture as a showcase for the work it does. we as a society were fortunate to be the hosts for the very first heritage lectures to 1991, when justice kennedy spoke as part of the packing plant. other lectures held here at the supreme court include the 1995 talk by the right honorable lord wolf on the house of lords and the privy council, the 1998 lecture by the board high chancellor of great britain and on a constitutional changes,

the 2002 re-enactment of gibbons, and the 2006 enactment of the treason trial. as you might imagine, it is a high priority to present a significant meaningful program for the heritage lectures. this year, the jackson center in jamestown, new york suggested a program on the office of the solicitor general. of the program committee and society's executive committee agreed that they were an ideal fit. the executive director of the jackson center brought this program to us. i also want to thank our panelists. our discussion this evening will

focus on the work of the solicitor general and away from specific cases, but we do hope that our panelists. the solicitor general, it was not until 1870 that congress authorized the office, saying that there should be an officer learned in what to assist the attorney general in the performance of his duties to be called the solicitor general. since then, the solicitor general has been tasked with conducting all litigation on behalf of the united states supreme court, and supervising the handling of litigation in appellate courts. four solicitors general have gone on to sit on the supreme court. taft, reid, a jackson, and thurgood marshall.

two current justices serve. john roberts and samuel alito. justice marshall said being solicitor general was the best job he ever hadñr, and he had se good jobs. i hope we learn this evening if our panel agrees with justice marshall's statement. let me begin by asking the most recent occupant to briefly explain the job of solicitor general, and if possible, describe what an average day is like in the life of the solicitor general? >> there probably is not an average day, and that is part of what makes the job so interesting and fascinating. the basic responsibility, in a nutshell, i think, is probably

to start with the most public role of the solicitor devereaux, and that is his representation of the united states of america, which most often means the executive branch, but his representation before the supreme court of the united states. and i would think that one way of capturing the job is that the solicitor general in many ways sits at crossroads of the separation of powers, at the court, defending constitutionality of an act of congress or some executive branch policy, and you really see that in the report, because here in the court you have a representative of the executive branch speaking to the embodiment and hierarchy of the article reports system and representing the views of the united states. the other thing i would say before giving my colleagues a

chance to fill in some enormous details is although this public role of representing the united states and the supreme court is the most visible and perhaps most important role of the solicitor general, it is truly just the tip of the iceberg, and there's just an enormous amount of work that goes on behind the scenes to formulate the position the united states will take in the supreme court, to formulate the positions the united states will take in the lower courts and the court of appeals or even in the district court in a particularly important case. as important as our role is, is just the tip of an enormous iceberg. >> let me add to that. it is really being in the catbird seat with respect to the litigation going on, cases that

involve the federal government all over the country. very few lawyers have the ability to look out country and see the movement of 50,000 cases in a lower court move up and point to the supreme court, and it is really the job of solicitor general, in effect, to be -- this is not a fancy term, but a traffic cop, because all of those cases cannot get to the supreme court for resolution, so it falls to the solicitor general to sift through the numerous cases that come up and decide which ones are worthy of being presented to the supreme court, and asked the supreme court to resolve these matters that will have effects that impact the country. >> let me at my word of thanks. thank you for your hospitality and to the society, your wonderful leadership, i see so

many friends here, extremely fine advocates. thank you for that tribute. for the officers of the court, i must also pause and pay tribute to mrs. thurgood marshall. it is wonderful to see you. [applause] i remember being humbled more than once by your lead, iconic husband. he knew how to ask a question, and i struggled to figure a way to answer. it is a great privilege to have you here. i would also add that the statute itself creating the office is pristine in its simplicity, describing a simple role, to assist the attorney general. the attorney-general, who's office was created in 19th 79 -- the office took a long time in -- created in 1879, and it took

a long time in gestation. it was through federal law enforcement that it began to exist at all. but i was grateful for the attorney general, which would bring us to the political dimension of the job, politics versus wall -- law. but one of the most intriguing aspects was that occasionally the solicitor general will find themselves the acting attorney general for a particular matter, especially matters of national security, which we should not talk about except to say is one of the most intriguing parts of the job. and i found i was called to do various projects, including working on issues of the justice system, but it essentially

remains the same when it was first passed well over a century ago, and our task is ultimately to assist the attorney general. >> they often occupied the same positions arguing there, but i think in the early 1900's, because of the enormous responsibilities placed on the shoulders of attorneys general, the responsibility for handling cases fell to the solicitor general, and heat, and now she, really occupy that as the principal responsibility. they argued before the court from time to time, ended lower courts, but that is the exception, not the rule.

>> i assume you thought you had a good sense of what the job entailed when the president asked you to become solicitor general. you had worked in the attorney general's office prior to being elected so's the general and you had judged on the d.c. circuit. so what surprised you once you started to exercise it? >> i was down the hall from a very great solicitor general, rex lee, and i know some of the great ones in this room had the privilege of serving him. the conflict resolution, i knew that it was there, but the role of taking various positions and coming to closureñr, and the

conflict resolution, it sounds very much like a judicial role. ñiñrñiçói knew itçóñr existed bt underestimated how much, at least some of my time and energy was dedicated to ironing out a, not in some arbitrary compromise sense, but coming to the view that this in fact should be the position of the united states. >> you have had a lot of exposure. what surprised you? >> i was arguing forñi my positn against the criminal division or some part of the government. butñi what surprised me was the enormous amount of work goingñio carry out responsibilities. there is the tip of the iceberg, the supreme court. but whenñi i looked at my desk r

the first day of real work and salt pile about that high, i said those cannot all be supreme xdñicourt matters. they were recommendations. ç

ñrñrwith on a daily basis, and something that i was not aware of, that the solicitor general has responsibilities that are international. for example, court briefs are going to be filed, the solicitor general has to approve it. so i found myself learning more about the canadian tax code that i thought i would ever have to expose myself to when i became solicitor general. >> in terms of public perceptions, the solicitor general has been called the 10th justice. i suppose the premise is that the solicitor general has as much influence on development what as a justice. when any of you be willing to subscribe to that view or take issue with it? >> i will say this. the interesting thing versus the

solicitor general, because you do care battle lot, and kaplan wrote a book with that as its title, you never hear that phrase coming from any of the nine are real justices. that reinforces that there is a fundamental divide and that, maybe drew said it, that the solicitor general -- the 36 law clerk might be more accurate. and it gets back to what jim said, which is that statutory early, one of the important responsibilities is to assist this attorney general, i think every solicitor general and lawyer in the office really understands that another important part of our responsibility is to assist the

nine or real justices and try and be helpful to them in resolving their cases. and that can take any number of forms. i think in the briefing of cases, i think it is always an aspiration of the office that briefs the case that as it is presenting the case to the court, particularly as it weighs out the facts of the case to like, that it provides the core of the very objective view of what is at stake with the case. that is, i think we feel that we need to present to the court the full picture of the case so that if they pick up the brief, it was a drought to cope, but now it is a respectable gray.

the idea has been that if he picked up the gray brief, you know what the case is about. i think that is a very real way. the other thing i will say is this is also the most obvious manifestation of the way the solicitor general's of west can help the court, a process known in the office but maybe now worlds. that is the cvsg process. it stands for calls for the views of solicitor general, and it happens about two dozen times every term. when the courts have a case that the united states federal government has not previously been involved in, the court will hear the case and get a position, the losing party will ask the court to take the case and review it on merit as part of the plenary docket, the opposition will involve ---

advise justices that they should do no such thing, and they will call for the views of the solicitor general and ask for use on the case. and they are asking for the views on the underlying laws, for the office's view on whether the court should take the case, but also they are at bottom asking what the federal government feels about the importance of the case. generally, these are cases that impact the federal government, but the federal government has not been party, and that is one way in which you do not see this special relationship. they did not call for the views of anyone else. >> i agree. i thought the justices were asking for the views of the united states, but that is not what it says. it calls for the views of

solicitor general. so my personal credibility was on the line responding to the court when those requests were made. the other thing about the idea is that the solicitor general and people on his or her staff are repeat players. if you are a private lawyer with the case before the supreme court, you will argue and you may make missteps, you may push over hard on things that perhaps are not entirely accurate, but it is not likely that you will let the heavens fall on your head the next time you appear, because they're usually will not be a next time. but for the solicitor general and staff, having credibility with the court is critical. it is key to the effectiveness of the office before the supreme court. ñi>> i was just going to add tht in light of the fact that we're

here as colleagues of the ues(ajjp j[i(lc@&c+of the brings toñ2óñi mind the remarke concurringçó in the fabled seize case and in a concurring opinion, he reflected and meditated on the nationñi of the separation of powers system. and i think that is a way to reflect on the relationship, ñiwhich is obviously special ana unique relationship between article two officers and all of those who served under her leadership, and in the article 3 judiciary, but particularly the supreme court of the united states. lñu)r'k about itñiñr is there is a conversation that is continually under way, and the advantage having a single officer in charge of the

executive branch as part of the conversation is that the solicitor general has very elaborate ways to develop over time extraordinarily efficient invitations of people into the conversation. it is not simply that when he served it was just for thurgood marshall, because with all of his when the -- wisdom, was eager to know what different agencies of government fought, and that process of inviting different agencies into the ñiconversation in connection wih a call to the views of the solicitor general or any issue that touches on more than a single department or division. xd>> i think we need to be clear about the fact that it is an executive-branch officer, and there are occasions -- one would like to hope they did not happen regularly -- where the solicitor general has to stand before the

court and challenge things the court has said or done, because they were not write the decided, and they have consequences that through implementation of those decisions, they did not advance the law in the way that the executive branch thinks would be proper. so there is a tension, but i try to keep in mind that there were matters, executive branch matters that i had to forcefully present to the court. i remember one occasion when i was given information that was critical to our maintaining happy relationships with our trading partners. çóñiduringñi oralñi argument, is asked a question that i knew i could not answer as a memberñiñf

the executive branch, because that would have upset the applecartñr with the europeans d so forth. to me, that was painful, and i rice for it.was painful, and i for me, that was an experience that encapsulate it does a dual role in the solicitor general. >> let's explore that. he referred to the fact of the hardest part of the job is deciding what the position of the government should be because of competing interests. the referred to representing clients vigorously in the supreme court, but on one hand you are a custodian of the credibility of the office, and also a high-ranking political

appointee. ultimately to the president. how you reconcile all of those different roles and interests, and in particular, how would you decide to repudiate a decision taken by the prior administration? you have to wait continuity against the perception of the office, against your obligation that you believe to be right? >> it is a very difficult balancing proposition. on one hand, one thing the justice captures is this idea that there's a special relationship between the court

and solicitor general's office, and a sense of independence of the solicitor general's office from the rest of the executive branch. but one of the mystifying things is that if you look at the organizational chart, you would have no idea why there is this culture of independence, because the chart makes things elegantly simple. the solicitor general reports to the attorney-general, reports to the president. as simple as that. in any given case, i do not think one would have to be an accurate -- and here is to the unified executive theory to understand that the president wanted to, and he could direct the solicitor general to take a particular position. on the other hand, i think that's certainly if the solicitor general found herself or himself being countermanded by the attorney-general or

president on a regular basis, that would probably be assigned -- a sign that there would be a time to get a new solicitor general. if you want the context of a particular instance where a prior general has taken the position in the supreme court and there are reasons the new ed construction might take a different position, i did not think i would say absolutely never. i would ever want to take a position that countermanded a prior decision that had been taken by a predecessor. i think the analysis and up being quite similar to what the court itself has to deal with in the areas of decisions of the part slows the general. it is entitled to great weight, but oftentimes there will be subsequent developments, just as the court will occasionally

change course based on subsequent developments. you can have a situation on one level, the united states had taken a different position in the supreme court have a prior point in time. but on the other hand, i have the benefit of all sorts of factors my predecessor did not have come in for the couple of intervening cases i could read -- including a couple of intervening cases, and in those cases, i did change the u.s. position. but i was very careful to be explicit that that was what we were doing and offer a brief explanation why, so it was not simply a matter of changing positions or doing it in a way taken lightly. >> i had an interview with

clinton in the oval office, and i prepared for it, waiting for question after question, kind of like a final examination. but it turned out to be a casual conversation. there came a point in the law when the president looked at me and said, what is the relationship between the president and solicitor general? and i said, mr. president, you are in the constitution. the solicitor general is not. he liked the a lot. [applause] later on, i found myself encountering the problem just post, a position that had been taken by not just one but probably two prior administrations. the fact that candidate clinton had said when he was campaigning that if elected, he would support x in the case

headed to the supreme court. it was not the position my predecessors had taken. i decided that i could move and the direction of the president's's position, but i said to my staff late one night that we might be back in new haven sooner than we thought on this one. but it involves tax law, international trade. what i did was i got officials from the state department and the treasury department's to tell me how the former positions were developed and exactly what the thinking was carried by the time i reached my position, i put in the brief exactly the process i follow it rich in the position that it -- that i did. there was also a point where someone in the white house kept debating with me certain things in the draft i sent over, and

finally it must have been midnight, this fellow called and said, well, we do not like footnotes. could you change that. and i said, no. i am comfortable with the position i've taken. and i knew i had succeeded, because the voice on the other side of the line said, but professor -- it had been one of my students. [laughter] and the irony of it all was the court came down with positions on the side that we had urged, based upon a rationale that had been presented by neither of the prior administrations. so it was a hard job to work out, but in the end, the court found its own way. >> the key is continuity.

there is extraordinary continuity in the government, and it is rare. it is a good thing that it happens, that there are changes in position, when thoughtful lawyers, particularly as much as what and bodies policy choices and preferences -- they should advance a different point of view. but it has been said, i think correctly, that good government is good politics, and respecting traditions of independence and with independence, legal judgment brought thoughtfully to bear by process, it is very elaborate, extremely refined, and very impressive, just as a cog in a very impressive machine.

but it is done very rarely, and it accounts for the fact that even with having dramatic consequences in elections, and they do, the work of the solicitor general largely goes on unchanged, with continuity. i want to tell a brief story of the attorney general going to president reagan and saying our position and our policy position with respect to the powers of congress as part of reform of

bureaucracy and getting control, which the judge devoted a chapter to his wonderful book about, this is non-partisan. we have very thoughtful in dividuals. one measure is a legislative veto. forget by cameras and. they go to the president important -- forget bicameral ism. you go to the president and say that the matter is wrong in terms of constitutional law. it shows the triumph of law over thoughtful policy. very benign, powerful concerned about getting control of bureaucracy, but that is the wrong way to do it.

they had ruled that the legislative veto was unconstitutional, and that proved to be the rule articulated by the supreme court of the united states. >> how do your old rules factor into the decision making process? how much of those to dictate as positions taken on behalf of the united states. the solicitor general once said, i do not answer to the man who appointed me. on the other hand, robert bork, solicitor general in the nixon ford administration, said that he thought virtually every antitrust case that came to the office, he thought the anti-

trust division was taking a division that was not as long, but ridiculous. he dutifully allowed the antitrust division, even though he personally thought they were not just wrong, but ridiculous. so how much did your own view and in to what to present to the supreme court? >> saying ridiculous is hyperbole, certainly. i am not surprised that bob would say that. but i see the role of solicitor general as a policymaker, not in the sense of government officials, but although we have very fine lawyers and solicitors general

tend to have legal background, if we think a position is not likely to be effective, not the best way to present the issue to the court, counterproductive in some sense, i think it is the solicitor general's duty to let that be known, and indeed, in so many cases that have come before the solicitor general for resolution, it is not one entity that is only involved and effective. antitrust is taking a position that will affect the patent and trademark office, or the trade representative, and therefore, we have to look at the solicitor general, at how the position will have an impact on the entire government. one of the issues that came up, and i think still comes up, has to do with the whole question of respect for agency decision

making, how much respect should be given to the courts for the process. arco cases where certain agencies wanted to push very hard in the direction of greater respect from the judiciary, and i thought that are given their position giving the tax -- facts a that they were putting would work to the disadvantage of other agencies, having a negative impact across the government. therefore, in those circumstances, the answer was, no, i will not present deposition, i will not allow that case. but i was head of the civil- rights division, and when matters came from there, i tried not to think of myself as the attorney general for civil rights, because these people were nominated by the president and confirmed by the senate and they had a right to carry out their policies as they saw fit. >> well, i think that francis

was incredibly elegant, giving meeting, engaged in a fantasy, a rather dangerous fantasy about platonic notions of justice determining the position the united states takes. this is very disrespectful to the much more limited and modest role that should be taken, certainly by a single individual. and certainly it is understood even by its office -- author to be hyperbole. been there is a great, strong moral sense to the values of law, but if you elevate that, it gets to be a bit scary. on the other hand, it surprises

me a little doubt judge bork, who if it is a persuasive person, allow positions where it is ridiculous to be advanced. so it is what i think is the most careful, painstaking conversation, making sure that that is what we want to do. that being said, judge bork made it very clear that he gave a great speech to the bar association, saying that if you have antitrust issues, do not knock on my door. i trust policy. so there is a very good lesson in that. but what is left out of that is that it is a much more

collaborative process than either the solicitor general's indicated. >> i think solicitor general biddle came up with this grandiose quotation. there was some irony that he was solicitor general for a very short time. i cannot imagine the attorney general agreed with the solicitor general about his description of the role, but that said, i would echo the point that in understanding different relationships and where the truth lies, between biddle and bork, i think it is important to differentiate between policy matters and legal matters. i realize it is a continuing, and antitrust cases are a good

example of some airlines are fuzzy -- somewhere where lines are fuzzy. but if there is the executive branch, it is not the role of the solicitor general to use his or her monopoly for power over presenting positions to the supreme court to second-guess that policy view. and even then, though, even in that policy area, there is no requirement the solicitor general be a potted plant. and on one or two occasions, i had something where i said it is not my role to second guess this policy judgment reflected in the regulation or the like. but i am a member of this administration, and i cannot believe that is the position. so let me pick up the phone and call somebody. it is not my job, but they're

people who do that, and i can ask it this is really our position. when you are in the more it legal ground, i think the solicitor general is not as grandiose and their role as solicitor general biddle described, but nonetheless, it is not worry take the input given from others and decide whether they are powerful enough to offer the supreme court. and to give you a for instance, during the time i was solicitor general, one issue we confronted across cases was a question of the extent to which we ought to argue that the standard involved in the case was a standard for challenges. in deciding how the ad ministration will approach that issue across cases and subject matters, it seems like a call for the solicitor general, as

opposed to the position of any particular agency who might be involved in a case in any given case. so i think you have to differentiate between the policy issues and legal issues, and i think the role is more robust with a legal issues and less so with respect to the policy issues. >> let me ask you a related question when it came to the filing of briefs. there are many, many important issues that come before the supreme court that do not seem to involve the operations of the federal government at all. for example, the restrictions placed on the availability of abortions or state laws banning assisted suicide or school prayer. the administration may have strong reasons, a philosophical or political, even, to see one

side or the other prevail, but they do not relate to any particular programmatic interest of the federal government. should the solicitor general be involved in those cases, and if so, what are their criteria? is there a concern that the united states in those cases but from one administration to the next, 180 degrees, to the point where the supreme court used the breeze as just political statements? >> it is a judgment call. that is the most delicate part of what a solicitor general is called on to do. here she is part of the investigative powers, president of the united states, and the president has strong views on a particular subject. nonetheless, there is the

question if this particular vehicle is one we want to be involved in. there are examples so divisive about abortion and school prayer. and fundamentally, an area of philosophy i would talk about, the solicitor general's office should be there. there is a development of low wall and due process, an extremely important part of the court's work. so what the court does in a particular case will shape one of the most important dimensions of our civic life together. ditto for the establishment clause. the united states is deeply concerned about the establishment or the religion clause more generally.

my sense was that no, we should not take a passive the court is determined to take the case. the court should have the benefit of the thoughtful analysis. record does not call upon the solicitor general to express the views of the solicitor general. it exercises its discretion and the control of the docket. therefore they are saying to that this is important. we need to resolve this issue in this sensitive area. it would be odd for the solicitor general to have something as important has that.

>> i agree that the government should sparingly participate in cases raising these very controversial surface issues. i think it is contributing to the orderly development of the wall. that is how we characterize involvement in matters that do not seem to directly affect the united states. these are important issues. but i think that what is important is that the government, if it is going to be involved, actually does something helpful to the justices and courts. it is possible for the solicitor general to draw on the entire government for the information that might have bearing on decisions the court has to make in this area. and i think that you are involved in the case having to do with what a person can be

taken off life-support. my recollection is that you might have revisited the virginia hospitals. >> well, this is information most private parties cannot offer to the court. there is this wisdom, this knowledge with the federal government. so the challenge is to determine that it is really going to be helpful to the court, and as he said, and this has to do with changing positions, he wanted to be known as the solicitor general of the united states, not a counselor general, and i always have taken that as a challenge for anyone who serves in the office. >> i might even have a slightly different view. i always think that when the united states filed a brief in the supreme court, in some respects, the most important section of that brief is maybe

the one that is read the most rapidly, but that is the interest of the united states, supreme court rules require that to be in the brief and require articulations of why it is that the united states is interested in a particular case, and i think that if there is a case that is interesting but does not directly implicate the interests of the united states, i think that the burden for getting involved in that case, the justification for getting involved in that case, what to be a very high one. i do not think that just because the case is controversial or important for that the united states should necessarily file a brief, and there certainly are very important cases -- to pick a couple of related cases, very important issues about circumstances in which the death penalty is unconstitutional --

the federal government did not participate in either of those cases. and the reason was that a federal statute already provided for the rule that the capital defendants in those cases were seeking to been from the amendment. so it was already impermissible to use capital punishment for somebody who was a juvenile at the time the offense. dallas federal law, and it seemed to me in a case like that were under federal laws somebody would not have capital punishment administered to them about what was there, weighing in on the amendment us speech and circumstances, there was not a great rule in that case. and it is particularly important for whoever the administration

not to take a position that is not just a stretch but is actually contra to long-term interest of the government. the government is likely to be a taker of property. for the government to take a position that there ought to be a clause, the federal government tends to be an establishment of religion, not and establish she. if you allow my license with the praise. therefore, even though it might be attractive to take the position that certain things are an establishment, i think that it's hard to justify, because it goes against the interests.

another important job is to appear in this courtroom and present oral arguments on behalf of the states. so let me just touch that briefly and ask whether you felt any different healing arguing as solicitor general. was there any factor that differentiated solicitor general from arguing in other capacities as a private lawyer, and how did you manage to prepare for that, given all of the other significant responsibilities you had?