Solicitor General John Sauer’s Predicament
His incompatible duties to the president and the Supreme Court are coming to a head.
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Yesterday Justice Alito published a fiery statement explaining his dissent from the Supreme Court’s early Saturday morning order directing the U.S. government “not to remove any member of the putative class of detainees [subject to Alien Enemy Act removal] from the United States until further order.”
Alito’s statement highlighted the rushed and unusual nature of the Court’s order. What it neglected to mention was that the Court probably acted so quickly because the U.S. government cannot be trusted to comply in good faith with the Court’s April 7 order that the “AEA detainees must receive notice . . . within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.”
In its sprawling federal court litigation since January 20, the Justice Department in the lower courts has made wildly broad claims of authority and acted in a dissembling, disrespectful, and at times bad faith manner that can only be seen as purposeful and indeed coordinated. This approach has been echoed by senior administration officials, starting with the president, who have attacked courts ceaselessly (including in yesterday’s presidential Easter message).
Yet as I suggested in my interview with Ross Douthat last week, the Trump administration has been more sober in its dealings thus far with the Supreme Court. The reason why is the Office of the Solicitor General—the Justice Department component that files briefs and argues cases before the Supreme Court, and determines which cases to appeal from the district courts.
The SG’s Office has a special relationship to the Court, including special obligations and practices, that are part of the culture of the office and are the sources of its extraordinary influence. No SG should want to depart from these customs or give up this influence.
This essay is about why the SG’s traditional role is under unprecedented pressure in Trump 2.0. We are about to find out whether the new SG—John Sauer—can maintain the SG’s traditional stance toward the Court while catering to the wishes of the president and the White House.
The Tenth Justice
The SG is the only executive branch official whom Congress insists must be “learned in the law” and the only federal officer in addition to the vice president who has a formal physical office outside the executive branch.* (The SG’s other office is “in the Supreme Court building, located on the main floor in close proximity to the courtroom”; the vice-president’s is just off the Senate chamber.)
The SG is known colloquially as the “Tenth Justice” due to the office’s special role before and relationship with the Court. In a nutshell: The SG has institutionalized knowledge, massive experience and expertise, outstanding advocates, and knowledge of government interests, all of which inform the Court’s decisionmaking, and on which the Court relies heavily.
The SG’s Office is not a neutral advocate before the Court. It represents the government, which has strong and particular views, and its agenda and arguments differ by administration. But the office benefits from a deserved reputation for candor before the Court. One small but important piece of evidence of this candor is its practice of “confessing error” to the Court of an undeserved win, which happens on average around two times each Term.
As a result of the SG’s honesty and integrity in its representations, the Court treats the SG’s factual and legal claims with unusual seriousness and credibility, and gives the SG’s certiorari petitions and role as amici unusual solicitude. Four of the nine sitting Supreme Court Justices spent time in the SG’s Office.
Because of the SG’s special role before the Court, the office has traditionally had in practice (though not in law) strong independence from the attorney general and the president. As the Office of Legal Counsel once explained, while “the Attorney General has the power and the right to ‘conduct and argue’ the Government’s case in any court of the United States,” the AG has given the SG “the primary responsibility for presenting the Government’s views to the Supreme Court, and in the discharge of that function the Solicitor General has enjoyed a marked degree of independence” (emphasis added).
The same points apply to the president: He has the power, superior to the AG, to direct the SG, but by tradition has not done so except on the rarest of occasions. OLC explained:
The Constitution requires the President, and thus the Attorney General, to execute the laws faithfully. It requires them to follow the law, even if that course conflicts with policy. For this reason alone, in our view, the tradition of the “independent” Solicitor General is a wise tradition. It has arisen because it serves a useful constitutional purpose. Very simply, an independent Solicitor General assists the President and the Attorney General in the discharge of their constitutional duty: concerned as they are with matters of policy, they are well served by a subordinate officer who is permitted to exercise independent and expert legal judgment essentially free from extensive involvement in policy matters that might, on occasion, cloud a clear vision of what the law requires. While it is doubtful whether either the President or the Attorney General could “delegate” to the Solicitor General the ultimate responsibility for determining the Government’s position on questions of law presented to the Supreme Court, as a matter of practice, in the discharge of their offices, they can allow themselves the benefit of his independent judgment, and they can permit his judgment to be dispositive in the normal course.
One should not romanticize the SG’s office or its independence. Not everyone believes the SG always acts with adequate candor or integrity, and presidents and attorneys general have occasionally insisted on a view before the Court that is not shared by the SG.
But the general points hold: The SG has a very special relationship with the Court; and in deciding when and how to engage the Court, it has traditionally exercised remarkable independence and received remarkable deference inside the executive branch. There is no doubt that across the run of cases, the government benefits enormously from these practices.
John Sauer’s Predicament
As I explained about two months ago, and as remains true today, the Trump administration has taken four steps “to blunt executive branch legal obstacles to [Trump’s] will.” It has hired and fired on the basis of strict personal loyalty to the president; it has placed legal interpretation in the White House rather than in the Justice Department; it has issued directives to ensure that all executive branch lawyers “interpret the law to meet the president’s wishes”; and it has engaged in “tactics to resist compliance” with court orders that are extraordinary affronts to lower federal courts.
Until recently the SG’s Office has been something of an exception to this pattern—probably due to the factors noted above.
The SG has narrowed or sharpened some of the wild claims of executive authority in the lower courts when the cases have reached the Supreme Court’s emergency orders docket. And while the SG’s Office has filed some tartly worded briefs that seemed a bit out of character, it has paid respect to the Court that is quite different from DOJ’s lower-court behavior. At the height of the February scare about whether the administration would comply with judicial orders, the Acting SG, Sarah Harris, went out of her way in the Hampton Dellinger brief to state that the “Executive Branch takes seriously its constitutional duty to comply with the orders of Article III courts.”
John Sauer was confirmed as the SG on April 3. He is eminently qualified for the job given his past experiences, including years as the Missouri Solicitor General. He also has a qualification shared by other top DOJ officers in this administration: He represented Trump when Trump was a private citizen—for Sauer, in the immunity case before the Supreme Court. Sauer also filed a brief in the TikTok case on Trump’s behalf last December that displayed remarkable public obsequiousness to Trump.
Sauer faces some profound difficulties in his new job. He has duties toward the Court and will lose the benefits that accrue to the government if the Court cannot trust him. But Sauer will be under pressure to kowtow to the White House and to the president in particular—in legal arguments, factual representations, and tone—in his arguments before the Court. These imperatives are ultimately incompatible.
Sauer has an even broader problem. Even if he manages to maintain traditional SG independence from the president and the AG in arguments before the Court, he will be burdened before the Supreme Court by DOJ’s shenanigans in the courts below, and by the White House attacks on courts.
The Trump administration has through these actions called into question the “presumption of regularity”—the idea “that the government’s stated reasons for its actions are its true reasons and that its factual representations to the court are accurate.” The government’s credibility problem will likely influence the Supreme Court no matter what Sauer does (and probably did in the Saturday morning order, as I will explain below.) And Sauer will be stuck trying to explain actions and statements from DOJ and the White House even if his office distances itself from them.
This is all coming to a head in three cases: Abrego Garcia’s case, the AEA litigation, and the birthright citizenship case.
Abrego Garcia
Garcia is the person whom the government acknowledged was mistakenly deported. On April 10, the Supreme Court in a unanimous emergency order stated that the district order it was reviewing “properly requires the Government to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.” The Court added that “the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.”
The government has engaged in remarkable duplicitousness before the district court on remand concerning this directive from the Supreme Court. The government’s arguments and behavior, both in this case and others, led to Judge Wilkinson’s plaintive hope in an order last Thursday “that it is not naïve to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos.”
The Fourth Circuit order denied the government’s request for a stay from the district court’s clarification order on remand from the Supreme Court. An important issue now is whether Sauer asks the Supreme Court for emergency relief from the district court’s actions on remand.
“Next big question is whether Solicitor General John Sauer can explain to [Deputy Chief of Staff] Stephen Miller that it would be foolish to seek emergency relief in the Supreme Court,” noted Ed Whelan last week. It would be foolish to seek emergency relief because the government lacks a good argument for such relief and has behaved atrociously in the case since the Supreme Court last faced the matter. And thus far the SG has not done so.
But consider what Sauer faces from his executive branch colleagues.
Last week his boss, Attorney General Pamela Bondi, displayed indifference to the Supreme Court order when she said in the Oval Office that Abrego Garcia “is not coming back to our country. … That’s the end of the story.” This is consistent with the basic DOJ attitude in the lower courts.
A week ago Miller denied that Garcia was “mistakenly deported anywhere” and said that the “only mistake that was made is a lawyer put an incorrect line in a legal filing.” Many judicial and government documents belie that claim. Sauer himself stated before the Supreme Court on April 7 that “the United States concedes that Garcia’s removal to El Salvador was an administrative error.”
There is no way to know Sauer’s views about these statements or whether the White House and attorney general are pressuring Sauer in the Abrego Garcia case or are directing how DOJ responds to the district court orders about next steps. Yet this behavior erodes the presumption of regularity and hurts the SG’s chances before the Supreme Court in this case and others.
AEA Case
The gist of Justice Alito’s dissent from the Court’s Saturday morning order is that the Court went too fast and acted prematurely. (Sauer made some of these points in his response to the ACLU’s emergency application, which he filed after the Court’s order and before Justice Alito’s noted dissent.)
Among other things: The Court refused to await a court of appeals decision, it did not wait for the views of the government, the applicants provided “little concrete support” for the allegation that the applicants were “in imminent danger of removal,” and the government in a different case represented on Friday that no AEA deportations were planned for April 18 or 19.
Steve Vladeck questions some of these claims and Alito’s dissent more generally. But even if we accept Alito’s points as valid, they are not the only relevant points and this is not a normal case. It is, rather, a case where the government acted with willful bad faith in seeking to circumvent judicial process related to AEA removals and in responding to district court judge James Boasberg’s initial orders. It is a case where the government engaged in gamesmanship in AEA cases following the Supreme Court’s original April 7 order. It is a case where the ACLU made representations supported by affidavits of movement toward imminent removal, and about stonewalling by counsel for the government.
This all came against the background of the administration since February disrespecting judicial orders and insinuating that it might defy them. Just hours before the Court issued its order halting AEA removals, the president stated: “We’re getting them out. And that’s why I was elected. A judge wasn’t elected to do that — I was elected to do that. And we’re doing it in record fashion.”
Taking these events together, it is pretty clear that the Court declined to give the administration a presumption of regularity and perhaps indulged a presumption of irregularity. In the coming days we will likely learn more about what the government was planning and doing last weekend. But the unusualness of the Saturday morning order suggests how much the Trump administration’s actions have influenced the Court’s attitude toward the government. It highlights Sauer’s challenge in the AEA case and in every other case.
Birthright Citizenship
Sauer’s first argument before the Supreme Court as SG will take place on April 30 in Oklahoma Statewide Charter School Board v. Drummond, a Free Exercise Clause case. Perhaps the Court will use that opportunity to question Sauer about whether it can trust the executive branch to respect its judgments. But that kind of questioning will more likely occur in the special May 15 oral argument before the Court on the stay applications concerning the birthright citizenship executive order.
As Will Baude explained, “[B]ecause there was no cert. grant [in the birthright citizenship case], there is no question presented, so it is not entirely clear what the question at oral argument will be.” He added: “[I]t is not clear whether the Court will focus on the universal injunctions question that it has avoided for a decade or so now, discuss other equitable or procedural issues, or even get into the underlying illegality of the executive order.”
But no matter what else the Court focuses on during the oral argument, some Justices may ask Sauer—whom I assume will argue—about whether the government can and should receive a presumption of regularity in its dealings before the Court. Since the argument is about an emergency order, it would be natural for Justices to ask whether and when they can trust government representations on the emergency docket, whether the government will act in good faith toward its orders in courts below, and similar questions.
In short, May 15 may be the first time an administration official is held to general public account for the administration’s actions toward federal courts. Sauer will be in a public spotlight that will reveal a lot about how much independence, if any, the Trump administration will give him in his dealings with the Court, and about whether and how much Sauer is willing to sacrifice the standing of the great office he leads in serving the president.
*This post originally stated that the SG was the “only federal officer whom Congress insists must be ‘learned in the law,’” but as a wise reader pointed out, the Senate legal counsel too must by statute be “learned in the law.”