Michigan Law Professor Leah Litman (left) moderates a Q&A session with Solicitor General Elizabeth Prelogar.
By Sharon Morioka
Michigan Law
On September 5, the Law School welcomed the 48th Solicitor General of the United States, Elizabeth Prelogar, who met with students and the Law School community. Prelogar provided insights into her work representing the federal government’s interests before the US Supreme Court.
Confirmed to the role in 2021, Prelogar has a long history with the court, having served as an assistant to the solicitor general from 2014 to 2019 and clerking twice for the Supreme Court—once for Justice Ruth Bader Ginsburg and once for Justice Elena Kagan. She is the fourth-ranking individual at the Department of Justice.
During a question-and-answer session moderated by Professor Leah Litman, ’10, Prelogar covered a range of issues, from her professional background to her favorite breakfast of champions: “five or six bananas.”
Breakfast aside, we share six takeaways from her talk.
—————
1. Representation matters (a lesson from RBG)
As only the second female solicitor general in history (Justice Kagan was the first), Prelogar understands the importance of representation.
She told a story from her days clerking for Justice Ginsburg that drove home the point.
“The year that I clerked for her, her husband, Marty, grew very ill and ultimately passed away. It was devastating for the justice, but she came to court the day after Marty had died, because she was handing down an important decision that day.
“She told me, ‘Marty would have wanted me to be here.’
“And she knew that it matters when people file into the courtroom and look up at that bench and, rather than seeing a homogenous group, they see themselves reflected back. That can really make a difference.
“And so I think about that a lot now that I’m in this role. I think it matters to see people who look like you serving in these roles.
—————
2. The United States can be a conflicted client
Representing the United States is a far cry from representing, say, a client in private practice.
While the latter presents a lawyer with clear goals, the government has a broad array of interests that don’t always align.
“For example, we have interests in enforcing civil rights laws. We also have defensive interests when we’re sued, including if we’re sued for discrimination in an employment context,” said Prelogar.
“And it’s those kinds of competing interests that make this job sometimes complex but also really exhilarating.”
To help evaluate the competing interests, her team follows a process that invites recommendations from various areas of the federal government that might have subject-matter expertise or be affected by the legal question in the case, such as where they administer a federal program.
“Sometimes it all lines up, but you’d be surprised how many times we get competing recommendations,” she said.
“Sometimes I’m trying to find a way to thread a needle and do the best I can to protect the diverse interests we have. Sometimes we get everyone in the room and talk it through.”
In the end, her ultimate goal is to protect the government’s overall interests.
—————
3. Amicus support accounts for half of the SG office’s work
Even when her office is not a party in a case, Prelogar is sometimes asked to support one of the parties.
During the last term, the office was involved in about 90 percent of the court’s cases, and about half of those were from an amicus perspective.
When such a request comes, the office again runs a process to determine whether to participate, including offering the parties on both sides a chance to meet and talk through the issues, which Prelogar likens to a moot court.
“When parties pitch us on participation, they’re usually trying to persuade us that it’s in the interests of the United States to support them. They often look at our prior writing on various legal issues and draft a memo for us to review,” she said.
“And they’ll often have a section of the memo that’s devoted to how their view is most consistent with what the United States has said previously.”
—————
4. Even when you lose, the work matters
When asked how to “keep on keeping on” when you disagree with Supreme Court decisions, Prelogar said it’s natural to feel disheartened.
But the remedy is to not give up fighting for certain principles or trying to move the law in the direction you believe in.
“I think of it as a pendulum,” she said.
“Sometimes you might think it’s swinging in the wrong direction. But if that’s the case, what we need are people who try to push back with an equal and opposite force to try to move things in a different direction.”
She added that the students she addressed are developing the skills necessary to swing the pendulum, and it’s up to them to take a stand and work for meaningful change.
Also, change doesn’t occur only in the nation’s top court.
“People think of law as being top down from the Supreme Court. Obviously, what the court does really matters. But there’s so much law that happens on a lower level that really affects individual people’s lives, and you can make a difference at that level, too, even if you have concerns about some of the bigger legal issues that are happening in the Supreme Court.
“So I guess that would be my pitch: Harness whatever energy you have, and try and channel it to something you believe in.”
—————
5. Persuading the court can be a moving target
Because some Supreme Court decisions have altered the legal landscape in recent years, some of the principles that Prelogar relies on to prepare her arguments might change. To prepare for that possibility, she takes her cues from the court.
“We’re in the business of trying to persuade, and we’ve had to adjust somewhat as the court itself has adjusted in various areas or made clear some of the doctrinal lines they’re drawing,” she said. “It’s critically important for us to make our arguments within the doctrinal framework that the court has announced.”
While that presents challenges, it also presents an opportunity for creative thinking and lawyering and a return to first principles.
For example, she pointed to the major questions doctrine, a legal theory that limits the powers of regulatory agencies.
“This is an area in statutory interpretation where the court has, several times in a series of cases just over the past four years, invoked this doctrine. Its boundaries are not entirely determinate yet. So we do the best we can, looking at what the court has already said to figure out the best way to persuade. But I think in a situation like that one, it’s also necessary to draw some lines ourselves and urge the court to think carefully about the doctrine it is crafting as that continues to evolve.”
—————
6. The best part of being solicitor general is the perspective you gain
Referring to herself as a “total law nerd,” Prelogar cited the variety of legal issues she addresses each day. In addition to her Supreme Court work, she also helps manage appellate litigation for the government in the lower courts.
As part of the appeal authorization process, she has to personally sign off whenever the government loses in a lower court and wants to seek further review.
“It means I’m seeing the full range of legal issues that affect our attorneys litigating on behalf of the United States all throughout the country, and it’s just incredibly intellectually fascinating,” she said.
“It’s this constant intellectual challenge that is very, very satisfying to get to work on.”
She also cites the talent of the people she works with.
As the last reviewer of all the cases submitted on behalf of the United States in the Supreme Court, she sees the work of myriad other Department of Justice lawyers.
“It’s incredible to see this writing and this strategic legal thinking and the judgments that are being made,” she said. “It’s gratifying to have such amazing colleagues and to get to work with them, and to get to lead them now in this role.”
Michigan Law
On September 5, the Law School welcomed the 48th Solicitor General of the United States, Elizabeth Prelogar, who met with students and the Law School community. Prelogar provided insights into her work representing the federal government’s interests before the US Supreme Court.
Confirmed to the role in 2021, Prelogar has a long history with the court, having served as an assistant to the solicitor general from 2014 to 2019 and clerking twice for the Supreme Court—once for Justice Ruth Bader Ginsburg and once for Justice Elena Kagan. She is the fourth-ranking individual at the Department of Justice.
During a question-and-answer session moderated by Professor Leah Litman, ’10, Prelogar covered a range of issues, from her professional background to her favorite breakfast of champions: “five or six bananas.”
Breakfast aside, we share six takeaways from her talk.
—————
1. Representation matters (a lesson from RBG)
As only the second female solicitor general in history (Justice Kagan was the first), Prelogar understands the importance of representation.
She told a story from her days clerking for Justice Ginsburg that drove home the point.
“The year that I clerked for her, her husband, Marty, grew very ill and ultimately passed away. It was devastating for the justice, but she came to court the day after Marty had died, because she was handing down an important decision that day.
“She told me, ‘Marty would have wanted me to be here.’
“And she knew that it matters when people file into the courtroom and look up at that bench and, rather than seeing a homogenous group, they see themselves reflected back. That can really make a difference.
“And so I think about that a lot now that I’m in this role. I think it matters to see people who look like you serving in these roles.
—————
2. The United States can be a conflicted client
Representing the United States is a far cry from representing, say, a client in private practice.
While the latter presents a lawyer with clear goals, the government has a broad array of interests that don’t always align.
“For example, we have interests in enforcing civil rights laws. We also have defensive interests when we’re sued, including if we’re sued for discrimination in an employment context,” said Prelogar.
“And it’s those kinds of competing interests that make this job sometimes complex but also really exhilarating.”
To help evaluate the competing interests, her team follows a process that invites recommendations from various areas of the federal government that might have subject-matter expertise or be affected by the legal question in the case, such as where they administer a federal program.
“Sometimes it all lines up, but you’d be surprised how many times we get competing recommendations,” she said.
“Sometimes I’m trying to find a way to thread a needle and do the best I can to protect the diverse interests we have. Sometimes we get everyone in the room and talk it through.”
In the end, her ultimate goal is to protect the government’s overall interests.
—————
3. Amicus support accounts for half of the SG office’s work
Even when her office is not a party in a case, Prelogar is sometimes asked to support one of the parties.
During the last term, the office was involved in about 90 percent of the court’s cases, and about half of those were from an amicus perspective.
When such a request comes, the office again runs a process to determine whether to participate, including offering the parties on both sides a chance to meet and talk through the issues, which Prelogar likens to a moot court.
“When parties pitch us on participation, they’re usually trying to persuade us that it’s in the interests of the United States to support them. They often look at our prior writing on various legal issues and draft a memo for us to review,” she said.
“And they’ll often have a section of the memo that’s devoted to how their view is most consistent with what the United States has said previously.”
—————
4. Even when you lose, the work matters
When asked how to “keep on keeping on” when you disagree with Supreme Court decisions, Prelogar said it’s natural to feel disheartened.
But the remedy is to not give up fighting for certain principles or trying to move the law in the direction you believe in.
“I think of it as a pendulum,” she said.
“Sometimes you might think it’s swinging in the wrong direction. But if that’s the case, what we need are people who try to push back with an equal and opposite force to try to move things in a different direction.”
She added that the students she addressed are developing the skills necessary to swing the pendulum, and it’s up to them to take a stand and work for meaningful change.
Also, change doesn’t occur only in the nation’s top court.
“People think of law as being top down from the Supreme Court. Obviously, what the court does really matters. But there’s so much law that happens on a lower level that really affects individual people’s lives, and you can make a difference at that level, too, even if you have concerns about some of the bigger legal issues that are happening in the Supreme Court.
“So I guess that would be my pitch: Harness whatever energy you have, and try and channel it to something you believe in.”
—————
5. Persuading the court can be a moving target
Because some Supreme Court decisions have altered the legal landscape in recent years, some of the principles that Prelogar relies on to prepare her arguments might change. To prepare for that possibility, she takes her cues from the court.
“We’re in the business of trying to persuade, and we’ve had to adjust somewhat as the court itself has adjusted in various areas or made clear some of the doctrinal lines they’re drawing,” she said. “It’s critically important for us to make our arguments within the doctrinal framework that the court has announced.”
While that presents challenges, it also presents an opportunity for creative thinking and lawyering and a return to first principles.
For example, she pointed to the major questions doctrine, a legal theory that limits the powers of regulatory agencies.
“This is an area in statutory interpretation where the court has, several times in a series of cases just over the past four years, invoked this doctrine. Its boundaries are not entirely determinate yet. So we do the best we can, looking at what the court has already said to figure out the best way to persuade. But I think in a situation like that one, it’s also necessary to draw some lines ourselves and urge the court to think carefully about the doctrine it is crafting as that continues to evolve.”
—————
6. The best part of being solicitor general is the perspective you gain
Referring to herself as a “total law nerd,” Prelogar cited the variety of legal issues she addresses each day. In addition to her Supreme Court work, she also helps manage appellate litigation for the government in the lower courts.
As part of the appeal authorization process, she has to personally sign off whenever the government loses in a lower court and wants to seek further review.
“It means I’m seeing the full range of legal issues that affect our attorneys litigating on behalf of the United States all throughout the country, and it’s just incredibly intellectually fascinating,” she said.
“It’s this constant intellectual challenge that is very, very satisfying to get to work on.”
She also cites the talent of the people she works with.
As the last reviewer of all the cases submitted on behalf of the United States in the Supreme Court, she sees the work of myriad other Department of Justice lawyers.
“It’s incredible to see this writing and this strategic legal thinking and the judgments that are being made,” she said. “It’s gratifying to have such amazing colleagues and to get to work with them, and to get to lead them now in this role.”
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