US Solicitor General Elizabeth Prelogar Reflects on Career Path and Job at 2024 Schwartz Lecture
At the 2024 Ulysses and Marguerite Schwartz Memorial Lecture, US Solicitor General Elizabeth Prelogar had an important piece of professional advice for law students – be a good listener.
“The best lawyers I've seen are also really good listeners,” she said. “It's important to do that in oral argument. You really need to listen to the question that Justices are asking you so that you can figure out what's concerning them and take your best shot at trying to persuade them, trying to get to the heart of their concern and answer it conclusively. [It’s also important to be] a good listener with respect to others, not have too much pride or ego about the particular way you're thinking about the case, be open and receptive to being challenged on it, and consider whether there are ways to improve your advocacy or make changes that will ultimately sharpen the issues for presentation.”
John Rappaport, Professor of Law, led the hour-long question-and-answer session with Prelogar, during which the Solicitor General reflected on her professional path and current job.
Dean Thomas J. Miles delivered the welcoming remarks at the January 23 event, attended by a capacity crowd in Classroom V.
Prelogar, a Harvard Law graduate, clerked on the US Court of Appeals for the District of Columbia Circuit for then-Judge Merrick Garland, who later left the bench to serve in his current role as US Attorney General. She then clerked for two US Supreme Court Justices, Ruth Bader Ginsburg and Elena Kagan.
After her clerkships, Prelogar worked for a few years in private practice before joining the Solicitor General's Office in 2014, first as an assistant to the Solicitor General and later as Principal Deputy Solicitor General and Acting Solicitor General.
President Biden nominated Prelogar as Solicitor General in August 2021, and the US Senate confirmed the nomination in October 2021. As Solicitor General, Prelogar is responsible for conducting and supervising all Supreme Court litigation on behalf of the United States. She is the fourth-ranking official at the Department of Justice.
Reflecting on Her Path
Rappaport, who clerked for Justice Ginsburg at the same time as Prelogar, kicked off the Q&A with his former co-clerk by asking her about her childhood and where her ambition to be a lawyer came from.
Prelogar said her father was a lawyer who maintained a general law practice in Idaho. However, when she decided to go to law school, it wasn’t a desire to be a courtroom lawyer or even to practice law that motivated her.
“I had been very invested in journalism, print journalism,” Prelogar explained. “I was on my college newspaper. It was my big passion. I interned at a bunch of newspapers and thought, I'll go to law school, get this professional degree, and then I can write about the law and try to make that my specialty in journalism.”
Prelogar’s post-law school experiences with her judicial clerkships gave her a different perspective.
“It was an incredible experience at the start of my legal career to have the chance to work with these three amazing jurists … and to have that kind of front row seat to seeing how they approach the task of judging, how they thought about the law, [and] how they reacted to different advocacy styles. There's just no replacement for that kind of experience and forming that type of lifelong relationship with a mentor that I think naturally derives from a clerkship.”
Recalling her time clerking for Justice Ginsburg, Prelogar observed: “It was very clear to her that the cases stood for much more than these grand constitutional principles. They really stood for real people being affected, who needed the aid and the protection of the Constitution and the legal system in order to correct injustice. And that's something that I always try to keep in mind as I'm litigating cases now.”
Justice Kagan, a former US Solicitor General herself and former Law School professor, would pepper her clerks with questions and solicit viewpoints, Prelogar said. “There was never a moment when Justice Kagan was more disappointed than when we all agreed on the case. She hated that. She would want the disagreement because she would really want to hear the strongest arguments on both sides.”
Determining the Docket
Rappaport asked Prelogar how, as the Solicitor General representing the United States before the Supreme Court, she determines what position the government will take. “There are all sorts of different subject matters and different agencies involved,” he noted. “How does that all work and how do you come to decide what the position of the United States is?”
It's complicated, Prelogar responded. “It really is an extensive process. We are participants in the overwhelming majority of the cases the Court hears each term, and in a lot of those, we are a party.”
In cases where it is a party, the government has typically staked out a position in the lower courts, and generally the Solicitor General’s Office will defend that position, she continued. However, on an infrequent basis, they determine, after a hard look at the issues, that a mistake was made and opt not to pursue the position, she added.
Deciding whether to file an amicus brief on behalf of the United States is a lot trickier, Prelogar said. “Anytime the Court grants review in a case, you will take a serious and deep look at it to see if it affects the interests of the United States, and most of the cases do…. But it’s not always immediately apparent where our interests lie. The federal government has a wide range of interests, and they don't always line up in the same direction or even on the same side of the [case].”
The different agencies and other stakeholders involved typically make recommendations on what the interests of the United States are, and on what position the Office of the Solicitor General should take to best advance that interest.
“We ask any agency or department or division that has subject matter expertise or has programs that could be affected by the issue in a case for a recommendation,” Prelogar said.
If the recommendations are divided, Prelogar will often meet with the stakeholders, getting them in the same room to talk it out.
“At the end of the day, I have to make a call, and it's not possible to please everyone, but I feel like the fact that we have this very rigorous process and provide all of this internal procedural due process means that at least the component of the government that is going to be disappointed by the decision feels like they were heard. And that's always my goal,” she said.
Exploring New Areas
Discussing her duties as Solicitor General, Prelogar said she loves the variety of cases her office handles, which is as diverse a docket as that of the Supreme Court.
“I will pick up a case that the Court has granted [review of], and it's some arcane question of how to interpret a provision in ERISA or something like that,” she said. “And I'll know nothing about it, and it seems a little dry. But then I start reading the brief and figuring out the arguments on both sides and realizing what the case is really about. And … I get really into it. I find it fascinating to explore new areas of the law and have the chance to learn about them. And argument is no different.”
Rappaport next asked Prelogar how she handles cases where, given the issue and the composition of the Court, it is likely that the government will lose.
While recognizing certain cases come with “enormous headwinds,” Prelogar said that there are very few cases where she feels that the oral argument won’t make a difference. “I had a mentor who said to me at one point early on in my tenure: all you can do is make the right arguments for the right reasons to the best of your ability. That is no small thing. And I think about that a lot because it really is a privilege to be able to devote whatever skills or talents I have as a lawyer to trying to advance what I believe to be the public good and the right constitutional vision for our nation.”
Noting that many lawyers have courthouse rituals, Rappaport asked Prelogar whether she has any in preparing for or making oral arguments.
Prelogar shared several. The night before oral arguments, she always has the same dinner, composed of chicken, rice, salad, and biscuits. Her breakfast the day of the argument consists of a banana. And in making the arguments, there is one accessory that Prelogar invariably has on.
“I wear a string of pearls that my grandmother gave me. She's no longer with us, but I do that to honor her.”