HLS Professors Fried and Manning join former dean in panel discussion
Just two days after making her debut before the Supreme Court on Sept. 9, Solicitor General and former Dean Elena Kagan ’86 returned to HLS to give students an insider’s account of her new role.
Students spilled into the hallway in Pound Hall to hear Kagan and her fellow panelists, HLS Professors Charles Fried (solicitor general from 1985 to 1989) and John Manning ’85 (assistant solicitor general from 1991 to 1994). Dean Martha Minow moderated.
The panel focused on the solicitor general’s unique role as a “backstop for the rule of law,” as Manning described the job. In that role, the office has immense authority, and as a result must be a dispassionate defender of long-term interests of the United States, the panelists agreed.
“A [high] level of professionalism, integrity and the lack of politicization have been a historic hallmark of the office,” Kagan noted.
As the government’s top litigator, the SG supervises all aspects of government litigation and appeals, and makes recommendations to the Court about which petitions for certiorari should be granted.
The Court agrees with those recommendations in the vast majority of cases, Kagan said.
Along with the 22 lawyers in the SG’s office, Kagan relies upon a “literal army of lawyers” across the federal government for legal analysis and memos recommending courses of action. Based on all of that work, only those matters that present an important legal issue that has been sufficiently “ventilated” in the lower courts are recommended for certiorari.
Manning, who served during the transition between Presidents Bush and Clinton, described the lack of political bias in the office. Only two of the 22 attorneys on staff are political appointees, he said. Because most everyone in the office is a career attorney, there is very little turnover. “There is an ethos of professionalism and neutrality and dispassionate lawyering that is exceptional and, I think, unique in the government and in the world of policymaking,” Manning said.
Said Fried: “It is the model of what lawyers working together should be.”
But, the SG is an advocate with a client and a specific job to do in defending statutes before the Court, Manning added. Thus, the solicitor general is not completely insulated from politics, to the extent that the legal positions on high-level issues may change when there is a change in the administration. Because the solicitor general ultimately works for the president, however, those policy changes are appropriate, Manning said.
Each SG typically argues at least one case per sitting of the Court, making her the Court’s most frequent litigant.
“The SG has an absolute obligation to be honest to the Court,” said Kagan. “The SG is a real repeat player. I can’t do anything … that will make me lose my credibility.”
Kagan summed up her new job by describing the delicate balancing act of being honest with the Court while still trying to win: “The SG has many masters. The trick of the job is figuring out how to accommodate the interests of the different players.”