The Political the Political

The Political SOLICITOSOLICITORR GENERAL he most political case of The “Tenth Justice” tral,” with restrictions “expressly based on the indelibly political Supreme the President’s national-security and foreign- Court term that ended in June policy judgments.” A prime point of conten- was about the travel ban Presi- and the polarization of tion was the stream of statements Trump had dent Donald J. Trump imposed made stressing his aim of barring Muslims last September. It banned al- the Supreme Court from the United States. When the Court Tmost all travel to the United States from seven heard oral argument in the case, Chief Jus- countries where more than 135 million people tice John G. Roberts Jr. ’76, J.D. ’79, assumed were covered by the ban. More than 90 per- Trump had made the statements with that cent of the citizens in five of the countries by LINCOLN CAPLAN purpose. Roberts asked Hawaii’s lawyer: “If were Muslim. As the state of Hawaii said in tomorrow he issues a proclamation saying its brief about the case called Trump v. Hawaii, this element of the ban he’s disavowing all those statements, then the next day he can re- violated the Constitution’s “bedrock command that the Govern- enter this proclamation” and “your discrimination argument would ment may not take actions for the purpose of excluding members not be applicable?” The lawyer said, “Absolutely.” of a particular faith.” Solicitor General Noel J. Francisco, representing the administra- The Trump administration claimed the ban was “religion-neu- tion, asserted in rebuttal that there was nothing to disavow: “Well, Illustration by Taylor Callery Harvard Magazine 47 Reprinted from Harvard Magazine. For more information, contact Harvard Magazine, Inc. at 617-495-5746 the President has made crystal clear on September 25th that he had the admission and exclusion of foreign nationals is a ‘fundamental no intention of imposing the Muslim ban.” The following day in sovereign attribute exercised by the Government’s political depart- Slate, Joshua A. Geltzer, a visiting professor of law at Georgetown ments largely immune from judicial control.’” University, explained why that assertion was inaccurate. “Here’s Justice Sonia Sotomayor wrote a piercing dissent. She said the the problem. No such thing seems to have happened on September ban is “motivated by hostility and animus toward the Muslim faith,” 25th.” He went on, “Time and again, Trump and the White House that it’s “inexplicable by anything but animus,” and that it “now have said the opposite of what Francisco represented to the court masquerades behind a façade of national security concerns.” She on Wednesday.” closed, “Our Constitution demands, and our country deserves, a A few days later, Francisco sent a letter to the Court saying that, Judiciary willing to hold the coordinate branches to account when when he referred to a statement by the president on September they defy our most sacred legal commitments.” 25, he meant January 25, when Trump said a previous version of It was the president who needed to be held to account. Martha the travel ban addressed “countries that have tremendous terror,” Minow, Harvard’s 300th Anniversary University Professor, and Rob- but was “not a Muslim ban.” The next day in Slate, Geltzer called ert Post ’69, Ph.D. ’80, a Yale Law School professor, wrote that Trump Francisco on that claim, too. The president’s full statement on Jan- has come “perilously close to characterizing the law as simply one uary 25 made plain that, to Trump, his administration’s ban was a more enemy to be smashed into submission.” The S.G.’s fudging Muslim ban, but narrower drew attention because it than the absolute one he raised the disturbing pros- promised—“the Muslim pect of the S.G. sacrificing ban,” Francisco called it, the integrity of the office with “the” implying abso- as part of that smashing. luteness. And to Trump, But the Court’s seem- the narrowing was re- ing indifference to the grettable. Francisco’s ar- S.G.’s misrepresentation gument to the justices, reflects another change Geltzer wrote, was “dan- in practices, under way gerously misleading.” for two generations and To close observers of a contributor to major the Court, Geltzer was shifts in the S.G.’s role. making a weighty point With the Court divided about the solicitor gen- ideologically along parti- eral: the S.G., as the law- san lines for the first time yer in the post is known, in history, between con- had put the interests of servatives nominated by the Trump administra- Republicans and liberals tion ahead of those of the by Democrats (a division Court and the justices deepened by the retire- should be wary of his as- ment of the sometimes- sertions in this matter. By libertarian Justice Antho- fudging facts—about the ny M. Kennedy, LL.B. ’61, travel ban itself, as well as since Brett Kavanaugh, the about the president’s pur- Trump nominee to replace pose in imposing it—to him, is likely to be more fit the view of the law he conservative), the S.G.— was trying to persuade the no matter the administra- justices to take, Francisco tion—has become more had violated the scrupu- political. How did this lous standard of candor esteemed post, which the about the facts and the law that S.G.s, in Republican and Demo- Court long regarded as the keel keeping the government balanced cratic administrations alike, have repeatedly said they must honor. when it threatened to heel too far to the left or right, come to con- In June, when the Court upheld the ban by 5-4, there was no tribute to forceful tacks one way or the other, to the Court’s seem- apparent penalty for this duplicity. For the conservative majority, ing indifference? Roberts wrote that the law in question “grants the President broad A comparison of the divergent approaches of Harvard Law discretion to suspend the entry of aliens into the United States” School’s late Archibald Cox ’34, LL.B. ’37, LL.D. ’75, as S.G. in the and President Trump “lawfully exercised that discretion.” In re- 1960s and Charles Fried in the post in the 1980s (he is the Beneficial viewing the president’s anti-Muslim statements, the Court had to professor of law) illuminates these important changes. (Eight of the consider “not only the statements of a particular President, but also nation’s 48 S.G.s went to HLS, have taught there, or both, includ- the authority of the Presidency itself.” He stressed, quoting an old ing Justice Elena Kagan, J.D. ’86, the only female S.G.) The changes opinion, “For more than a century, this Court has recognized that matter because the solicitor general remains, by a wide margin, the 48 September - October 2018 Archibald Cox, Solicitor General of the United States in the Kennedy administration. Photograph by PhotoQuest/Getty Images Reprinted from Harvard Magazine. For more information, contact Harvard Magazine, Inc. at 617-495-5746 most frequent and influential advocate before the Supreme Court. tution, as many scholars have documented and most Americans The changes reflect the changed nature of the Court, which is at believe. In 2015, the Pew Research Center found that 70 percent, the center of American life. spanning partisan and demographic groups, “say that in deciding cases, the justices of the Supreme Court ‘are often influenced by Law and Policy Fused their own political views.’” The s.g. is traditionally called the “tenth justice,” though it’s ob- The justices are products of politics. That’s unmistakable in the vious the Court has only nine justices. The moniker is a shorthand selection processes of presidents and the confirmation clashes of for what’s been inspiring about the position: Thurgood Marshall, the Senate. Justices’ rulings are often also products of their ideolo- then an actual justice and a former S.G., called it “the best job I’ve gies—about how the Court should allocate power, opportunity, ever had, bar none!” The S.G. is the only national public official, and other elements of society. Under the traditional ideal, judges including the Supreme Court justices, required by statute to be reached results by applying legal rules independent of political “learned in the law.” The job is to represent the executive branch at pressures. A classic example is the many federal-trial-court orders the Court and to decide which cases it appeals to the Court and to calling for desegregation of public schools in the South after Brown the federal appeals courts, yet the S.G. has an office at the Supreme v. Board of Education held that separate-but-equal education violated Court as well as at the Justice Department. the Constitution, despite furious opposition to racial integration. Those offices in different branches of government represent what The contemporary reality in the most important cases is that the Justice Lewis F. Powell Jr., LL.M. ’32, called the S.G.’s “dual responsi- justices apply rules in ways that are products of politics. bility”—as an advocate for the president yet also as a counselor to the Since 1969, three conservative chief justices, appointed by Repub- Court, expected to help the justices reach the right result in the law. lican presidents, have led an increasingly conservative Court. It’s S.G.s have long engaged in practices that confound the ideal of about to enter its fiftieth year as what the legal scholar Lee Epstein zealous advocacy at the heart of the adversary system. They have called the Republican Court, because of the link between the domi- confessed error in cases they thought the government won unjustly and recommended S.G.s have confessed error in cases they thought that the Supreme Court overturn the deci- sion.

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