Solicitor General Prelogar Walks Fine Line With Skeptical Court

Supreme Court argument days start out the same for US Solicitor General Elizabeth Prelogar with a breakfast of five or six bananas.

The nation’s chief appellate lawyer said in a May public appearance that the ritual helps calm her nerves before she tries to convince at least five of the nine justices to side with the government or the position it’s defending. The difficult job has gotten tougher with a conservative-led court less inclined to side with the Biden administration.

Prelogar must be strategic and find winning arguments without hurting the government’s interests in the future. This balancing act is uniquely challenging before justices willing to overturn Supreme Court precedent and deeply skeptical of what they view as aggressive use of executive power without express authorization from Congress, court watchers say.

Donald Verrilli, who served as solicitor general under Barack Obama, said he faced some of that skepticism when he held the job “but it’s more intense now with the change and makeup of the court.”

It’s a formidable task, he said, because any president is going to use executive power to try to achieve their policy objectives when the now-divided Congress isn’t willing to act.

Only the second woman to be confirmed to her post after Supreme Court Justice Elena Kagan in 2010, Prelogar was able to pull off surprising victories, ending the term with a 4-4 record.

The court sided with her in rejecting a Republican-backed effort to give state legislatures near-exclusive authority to set federal election rules in Moore v. Harper and it agreed unanimously to toss one of two challenges to President Joe Biden’s student loan forgiveness plan, in Department of Education v. Brown.

Prelogar, who declined through a spokesperson to be interviewed for this story, also scored victories when the court let the Biden administration shift the government’s immigration policies and upheld a lower court’s decision requiring Alabama to draw a second majority black congressional district.

Bloomberg Law/Jonathan Hurtarte

Usual Referrals

Prelogar, who at 43 is young for a veteran Supreme Court advocate, is uniquely suited to the challenge, according to those who have worked with her.

She’s long stood out as a “star among stars,” according to longtime Deputy Solicitor General Michael Dreeben, who was a career attorney specializing in criminal matters in his more than two decades in the solicitor general’s office.

She arrived at the office after rare back-to-back clerkships with Justices Ruth Bader Ginsburg and Kagan, and having clerked for then appellate court judge Merrick Garland.

When Verrilli hired her for that role, both Ginsburg and Kagan took the unusual step of calling him to say “that she was one of the best law clerks that they had ever had and that we couldn’t possibly do better,” he said.

Advocates on the right and left praise her effortless argument style and her clear and concise writing. The Emory University alum studied English and Russian and was a Fulbright Fellow before attending Harvard Law. She also earned a masters degree in creative writing from the University of St. Andrews.

Even among the highly qualified attorneys in the office, Prelogar stood out. She’s one of those “people who rise above the general star quality that it takes to get in the office to begin with,” Dreeben said.

She joined the investigation of Russian interference in the 2016 election and then was briefly a partner at Cooley before becoming the principal deputy solicitor general, a political appointee that serves as No. 2 in the office. Biden tapped her to lead the office, and she was confirmed, 53-36, in October 2021.

Strategic Thinking

Prelogar is able to “respectfully and eloquently” stand up to a sometimes hostile court, according to Cooley partner Kathleen Hartnett, who worked with Prelogar in private practice. She makes arguments tailored to the justices’ specific concerns while safeguarding the interests of the government, Hartnett said.

Dreeben pointed to Groff v. DeJoy, a labor case regarding the lengths employers, including the federal government, must go to accommodate their employees’ religious practices.

Conservative-backed groups urged the justices to toss the so-called de minimis test, which lower courts had long said didn’t require employers to accommodate religious workers if it would require anything more than a minor cost.

Prelogar argued the court shouldn’t overturn its precedent, but should clarify the doctrine for lower courts.

“And so the thing I’m trying to avoid is this idea that the Court would just throw it all up for grabs and say we have to do this over under some new standard and this case law is irrelevant for helping to guide employers in understanding their obligations and courts in applying the statute in those recurring fact patterns,” Prelogar said during arguments.

The Supreme Court eventually agreed, citing her arguments numerous times throughout the decision.

Chris Michel, a Quinn Emanuel partner who worked with Prelogar in the solicitor general’s office, said there are always cases that lawyers expect to win, and those they expect to lose. But it’s when advocates turn a seemingly losing position into a winning one–and vice versa–that shows their ability.

Cases like Groff where the US exceeded expectations but lost and others that were won despite long odds are really “a mark of her ability to understand the court and to marshal arguments that will be effective for the current court,” Michel said.

But to be solicitor general now “you really, really, really have to love your country and love appellate advocacy,” said Lisa Crooms-Robinson, interim dean of Howard University School of Law, who teaches constitutional law and a seminar on Supreme Court jurisprudence.

“Only because it appears that the six-person majority has, I don’t want to say an agenda, but I can’t think of another way to put it,” she said. “Given what we’ve seen them do thus far there are a number of, I think, areas where precedent has operated the way that it’s supposed to operate for quite some time and those are now it seems fair game.”

The court last term effectively ended the ability of colleges and universities to use race as a factor in college admission decisions and the term before that struck down the constitutional right to abortion, in Dobbs v. Jackson Women’s Health Organization.

Prelogar was at the center of the abortion issue within days of being confirmed.

Before Dobbs, Texas was fighting to keep a novel law that banned most abortions after six weeks of pregnancy and left enforcement to private citizens. Prelogar, who took office Thursday, argued the government’s challenge to the law the following Monday. She lost that first argument when the court later dismissed the case. It was the first of four losses in her first term that ended with a 1-4 record.

Prelogar also defended Biden’s Covid-19 vaccine rule that required employers with 100 or more employees to mandate their workers get vaccinated a few months after the abortion case but lost. The court agreed to block the rule, saying Congress hadn’t given the Occupational Safety and Health Administration the power to regulate public health beyond the dangers of the workplace.

“I can’t think of a solicitor general with so many high stakes challenges right off the bat,” Dreeben said.

Unflappable

In interviews with people who worked with and for Prelogar, the same word kept being used to describe her: unflappable.

Susman Godfrey associate Eve Levin said she never saw Prelogar get stressed when she served as a Bristow Fellow in the solicitor general’s office during the October 2021 term.

“Everybody gets stressed. There must be times at which she is stressed, but I will say as somebody who worked for her, she is really good at not letting that show and not projecting that stress and let it trickle down to the people below her,” she said.

Not only is she calm, she’s prepared. Levin said Prelogar thinks of every question she could possibly be asked by the justices.

During her May appearance at the Third Circuit Judicial Conference in Philadelphia, Prelogar said one of her rituals the night before an argument is to go home, have dinner with her family and then try out her introduction on her two pre-teen sons.

“Then my kids rate me on a scale of one to 10 on my opening and give me some very useful feedback,” she said.

When she was preparing to argue a challenge to Biden’s attempt to end a Trump-era policy that forced asylum-seekers to remain at the border in Mexico, Prelogar said her youngest son gave her opening an 11 out 10, but admitted he didn’t understand it.

She doesn’t always get a high score from them though. In May, she said her last practice had only earned her a seven.

Future Plans

Prelogar’s adept performance has prompted speculation about what she’ll do next.

In recent decades, most former solicitors general have ended up in private practice, said Marin Levy, a Duke University School of Law professor, who specializes in judicial administration, civil procedure, and federal courts. The exception being Prelogar’s former boss, Kagan.

If she wants it, Prelogar already has a place back at Hogan Lovells with Supreme Court veteran Neal Katyal, who hired her at the firm and wants her back.

But Katyal said he’d ultimately “like to see her on the United States Supreme Court giving some other solicitor general a hard time.”

– With assistance from Madison Alder.