Originalism is not merely a modern movement born in 1982; it is as old as the Constitution.
The Solicitor General is the Executive Branch’s officer in charge of litigation before the Supreme Court. The incumbent, Donald Verrilli, recently gave a speech in which he reflected on the difficulty of his post. “We’re at a time when a majority of the Supreme Court has a strong ideological perspective different from the president,” he said, adding that, “aside from the New Deal, this is probably the greatest amount of friction between the executive and judicial branches.”
The Supreme Court justices—all of them—believe they are applying the law in deciding cases, not indulging their political ideology. Even if Verrilli thinks otherwise and believes judges are essentially politicians in robes, it is foolish for the Solicitor General to impugn the self-conception of the justices he must persuade. .
And the claim that there are more fundamental differences between the Obama administration and any other Court except in the New Deal era is wrong. Begin at the beginning: the Jefferson administration so strongly opposed the review of its executive acts by the Supreme Court that it declined to participate in Marbury v. Madison, raising the prospect that it would not comply with an adverse decision. Jefferson’s Democratic-Republican allies in Congress impeached and narrowly failed to convict Samuel Chase, one of the Federalist Supreme Court Justices. Jefferson himself came to think of the Court as “a subtle corps of sappers and miners constantly working underground to undermine the fabric of our Constitution.”
More recently, the Reagan and first Bush administration had such persistent differences with the Court on abortion– the most important social and constitutional issue of the day– that the Court pointed to the executive branch’s persistent attempts to get it to overrule Roe v. Wade as a reason to retain the core holding of that case. And Reagan Attorney General Edwin Meese gave a series of speeches raising questions both about the Court’s method of interpretation and about seemingly settled court doctrines like the exclusionary rule and incorporation. Justice Brennan returned fire, calling such ideas “arrogance cloaked in humility.”
Verrilli’s comments cannot disguise that his performance has been the least able by a Solicitor General in decades. And that is not an ideological judgment. I thought Seth Waxman and Walter Dellinger excellent Solicitors General, even if they served an administration with which I had little political sympathy. And Elena Kagan was very good, particularly considering she had little experience in appellate advocacy.
But Verrilli has turned in one subpar performance after another. His halting argument in the Obamacare case was widely panned and, as Jeff Rosen showed, Verrilli failed to make available arguments to assuage the justices’ fear that federal authority to impose a mandate on individuals was unbounded. In the same-sex marriage cases, Verrilli argued that states which refused to permit same sex marriage but did permit civil unions violated the equal protection clause, but those refusing both kinds of status did not. Justice Stephen Breyer, hardly an ideological opponent of the administration, noted the perversity of the claim, as it would penalize states giving some measure of recognition to homosexual unions. It even was reported that the the head of the NAACP remarked to his tablemate that the Solicitor General had done an awful job defending the Voting Rights Act, only to find that his companion was none other than Verrilli himself.
And Verrilli filed an amicus brief stating that churches should receive no more protection for their employment decisions than secular associations, despite the Free Exercise and Establishment Clauses. Verrilli’s own predecessor, Elena Kagan, pronounced this argument “amazing,” and it did not get a single vote. Verrilli might look to his own performance in explaining some of his difficulties.