When the President Says No: A Few Thoughts on Executive Power and the Tradition of Solicitor General Independence (2001)

INTRODUCTION Although the Solicitor General is appointed by the President and serves under the Attorney General, he has gradually come to enjoy a tradition of independence in carrying out his official responsibilities. He is only rarely subject to direction by either the President or the Attorney General, and as a practical matter, he is in most cases the final decisionmaker with respect to both designing a strategy for government litigation in the Supreme Court and deciding whether to appeal trial court decisions adverse to the government. On occasion, however, a President will put deference aside and involve himself directly in determining what the government's legal positions are going to be. Documented instances of such presidential involvement are rare, since most occur in the course of rather low-profile discussions within the administration that never become known to the public. Nevertheless, a few examples have received significant attention, either contemporaneously or some years afterwards, often as the result of revealing memoir accounts. In the Truman Administration, for example, the President was reportedly involved in the groundbreaking decision to authorize the government's amicus brief in Shelley v. Kraemer, (1) its first in a civil rights case. (2) For his part, President Eisenhower added several sentences to the government's brief in Brown v. Board of Education, (3) which were then edited by an assistant in Solicitor General Simon Sobeloff's office. (4) And President Nixon once ordered Acting Attorney General Kleindienst to drop the government's pursuit of an important antitrust suit, although Solicitor General Erwin Griswold had already approved an appeal to the Supreme Court. But Griswold bided his time and sought several extensions while waiting for final instructions, and eventually received clearance to file the government's brief. (5) A comprehensive history of the Solicitor General's office would probably include other examples, but I discuss in this essay only some recent cases in which Presidents intervened, most of which are familiar to me from firsthand experience. However I learned about each, though, I hope that my insider's perspective will give the reader an appreciation for the ways in which the realities of the political world and the power of the Presidency can have an impact on the Solicitor General's work. THE PRESIDENTS AND THE CASES Carter I have yet to write a memoir of my tenure as Assistant Attorney General for Civil Rights in the Carter Administration. I can, however, offer this personal account of events leading up to the government's filing of its amicus brief in Regents of the University of California v. Bakke. (6) Under my leadership, the Civil Rights Division of the Department of Justice recommended amicus participation in support of the University of California and its affirmative action program, while the Assistant and Deputy in Solicitor General Wade McCree's office recommended amicus participation in favor of Bakke. Before McCree himself became fully involved, President Carter gave a press conference at which he pledged to support affirmative action. The Solicitor General's office nonetheless drafted a brief supporting Bakke, which, unsurprisingly, met with resistance at the White House. Following contentious meetings at various levels, Attorney General Griffin Bell attempted to shield McCree from the pressure emanating from the White House and the Department of Health, Education and Welfare, and McCree indicated later that he never received any direct orders from the White House. (7) He was, however, aware of the pressure being put on Bell. (8) In the end, McCree did not follow the advice of his career staff, and he eventually decided to recommend that the Court remand the case to the California courts for decision. (9) He and I then spent several days working with his top staff in a nearly nonstop session that produced a brief supporting the principle of affirmative action. …