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February 13, 2024

Fireside Chat with U.S. Solicitor General Elizabeth Prelogar

By: Gretchen Harris Sperry

Hosting the AJEI Summit in Washington, D.C. provides unique opportunities for attendees. Not only did audience members hear from U.S. Supreme Court Justice Brett Kavanaugh, but for the first time, AJEI welcomed the sitting U. S. Solicitor General, Elizabeth Prelogar, for an hour-long Fireside Chat. Judge Michelle Childs and Justice Bob Edmunds (Ret.) moderated this in-depth and wide-ranging discussion, which at times felt like watching old friends catch up over a cup of coffee.

General Prelogar hails from Boise, Idaho. She demonstrated extraordinary intellect from a young age, and at age 12, began taking classes at Boise State University. She also represented her home state as Ms. Teen Idaho and later as Ms. Idaho in the Miss USA Pageant—a “beauty queen” experience she and Judge Childs shared. Perhaps foreshadowing her career as a public advocate, General Prelogar used these platforms to raise awareness for people living with disabilities after her father was diagnosed with Parkinson’s disease, and she even wrote a children’s book on the topic.

After high school, General Prelogar studied English at Emory University, with the goal of becoming a journalist so she could continue sharing people’s stories. She interned at various news outlets across the country, but eventually, her interests led her to enroll at Harvard Law School, where she was first exposed to oral advocacy through the moot court program.

After law school, General Prelogar held three prestigious clerkships, each of which gave her unique skills and the perspective she relies on daily in her work as the top advocate on behalf of the United States. She clerked for Judge Merrick Garland on the U.S. Court of Appeals for the D.C. Circuit right out of law school. From him, she learned to quickly distill a case to its essence and identify the “pressure points” at issue.

General Prelogar then clerked for Justice Ruth Bader Ginsburg on the U.S. Supreme Court, where she learned the invaluable art of communicating sophisticated legal ideas through written opinions—a process that involved a lot of red ink and a lot of thoughtful conversation. Clerks submitted triple-spaced drafts to Justice Ginsburg to allow enough space for her edits and comments. She then sat with each clerk and went through her edits with them one by one, explaining how each change in sentence structure or word choice or even punctuation made the writing clearer and more convincing.

When Justice Elena Kagan joined the Court the following year, she asked General Prelogar to join her chambers for her first term. General Prelogar quipped that was the one time she could say she “knew more than a Supreme Court Justice.” From Justice Kagan, she learned how to skillfully navigate oral argument and maintain a meaningful exchange with the Court under often tense circumstances.

These unique experiences have given General Prelogar the judgment and independent thinking necessary to fulfill her duties as the fourth highest-ranking member of the Department of Justice. As Solicitor General, she is responsible for advocating on behalf of the United States and its interests, independent of any political priorities the sitting administration may have. When an issue involves conflicting priorities among federal agencies, for example, General Prelogar solicits the views of all relevant stakeholders. She then makes the ultimate decision as to whether the Office will pursue the issue in the U.S. Supreme Court and, if so, what position it will take. To that end, the Solicitor General also approves the position taken by the United States in every appeal throughout the country to ensure consistency across jurisdictions.

The Solicitor General’s Office also holds a unique position relative to the U.S. Supreme Court. Last year, the Office of the Solicitor General was involved in 52 of the 59 cases before the Court. General Prelogar takes that responsibility very seriously and is careful to pursue certiorari in only the most important cases to maintain the Office’s credibility and not diminish the importance of issues it chooses to pursue. Occasionally, the Court will call for the view of the Solicitor General (“CVSG”), inviting the Office to take a position on whether it should grant certiorari in cases where the United States is not a party to help it gauge the importance of the issue.

This mutual respect between the U.S. Supreme Court and the Office of the Solicitor General manifests in other ways as well. For example, the Solicitor General has an office in the Supreme Court building—only one of two federal officials to have a dedicated office in another branch of government. The Vice President is the other, with an office in the Capitol. There is a chair in the courtroom, called a “petit chair,” that is reserved for the Solicitor General during oral argument. The Solicitor General is also the only person who may use the hand crank on the side of the lectern to adjust its height, which General Prelogar confessed she was nervous about using.

General Prelogar shared some memorable moments from the lectern as well. She limits herself to arguing only the most consequential cases the Office handles, which often means she has back-to-back oral arguments, as she did three times last year, once arguing for over five hours straight. Limiting her appearances not only demonstrates to the Court the gravity of the issues presented in those cases, it also allows her Assistant Solicitors General to take full ownership of their cases and have the experience of defending them before the Court. General Prelogar is purposeful in her efforts to give these unique opportunities to as many people as possible, and advocates for clerkships to be awarded the same way. Although there is value in learning from multiple judges, as she did, she believes there is greater value in extending those opportunities widely to increase diversity in the appellate bar, among underrepresented groups and first-generation attorneys.

A day earlier, Justice Kavanaugh was asked what makes for great appellate advocacy. Without hesitation, he praised General Prelogar’s briefs and oral advocacy specifically as among the best he has seen. But in a relatable moment to many parents in the room, she said her highest praise came from her tween sons, who said her job was “cool.” General Prelogar’s accomplishments are certainly remarkable, but as she revealed throughout this Fireside Chat, her humility and grace are equally remarkable.

Gretchen Harris Sperry

Gordon Rees Scully Mansukhani LLP

Gretchen Harris Sperry is Co-Chair of the National Appellate Practice Group at Gordon Rees Scully Mansukhani LLP, based in Chicago. She is Chair-Elect of the ABA Council of Appellate Lawyers and serves on the Education Committee for the 2024 AJEI Summit in Boston. 

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