The Volokh Conspiracy
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Solicitor General Briefs Now Include An "Introduction" Section
One of the few pieces of new information in the New York Times article raising "concerns" about the SG's Office.
On the Monday after Thanksgiving, the New York Times published a lengthy article about turnover and partisanship in the Solicitor General's Office. Yet, there is very little new information. In April, the Washington Post reported on departures from OSG after Trump took office, and that there were now two principal deputies. The Times adds that the Office brought on several new assistants who (gasp!) clerked for Justices Kavanaugh and Barrett. But in the end, there is not even a hint that there is dissension within the office.
So far, people familiar with the office said the turnover had not affected morale; Mr. Kneedler and other recently departed attorneys returned for a recent happy hour with their former colleagues.
In 2024, I wrote about how there was some dissatisfaction with how Solicitor General Elizabeth Prelogar was taking more than her fair share of oral arguments. There were also departures. But Prelogar was praised with glamor shots.
So what do we learn from the Times? Michael Luttig is unhappy with his two former clerks, John Sauer and Hash Mooppan. Should we be surprised?
I think the biggest takeaway here is that a conservative Solicitor General is managing an office geared to a conservative Supreme Court, and he is strategically picking and choosing the cases that will lead to victories. Lisa Blatt's quote is on point:
Even critics of the president admit the office has an impressive record.
"It's like an 18-wheeler truck," said Lisa Blatt, a veteran of the Supreme Court bar and a partner at Williams & Connolly who has been critical of President Trump. "They're crushing it."
There was one useful piece of new information: introductions.
For years, it has bothered me that SG briefs lacked an introduction. Whenever I pick up a Supreme Court brief, I will immediately skim the intro to get a sense of what the argument is. If I am in a real hurry, I will scan the Table of Contents, as a good outline provide a short roadmap of the arguments. But the SG briefs never had introductions or descriptive table of contents. At some point this year, the practice changed. The New York Times has details:
For the first time in modern memory, the office's merits briefs, the legal filings it makes before the justices hear a case, begin with an "introduction," a section often filled with unusually charged language, including direct quotes from Mr. Trump. . . .
The new "introduction" section of briefs has been another point of contention. Government filings have typically begun with the legal argument, but now they open with a summary, often using punchy language. Ms. Baldassarre, the Justice Department spokeswoman, said the introductions offer a preview of the government's argument for the justices and make it more accessible for a general audience.
I, for one, welcome this change.
Now if the SG would only stop using Courier font for emergency applications. It is ghastly.
Update: A colleague reminded me that Sauer hired Aaron Roper as an Assistant SG. Aaron clerked for Judge Merrick Garland, and he was a Bristow Fellow. I suppose this sentence is accurate:
To replace departing lawyers, Mr. Sauer hired at least six new frontline attorneys. They broadly share the stellar credentials of their predecessors and include former law clerks to Justices Amy Coney Barrett and Brett M. Kavanaugh.
But Roper's hiring really doesn't advance the narrative.
