The Unyielding Battle: Conservative Justice vs Liberal Biden Attorney at the Supreme Court
Justice Alito leads the charge as conservatives relentlessly challenge the Biden administration in high-stakes Supreme Court oral arguments
Justice Samuel Alito leads the charge for conservatives, vying against the Biden administration, as he vigorously questions and skillfully corners advocates during Supreme Court oral arguments. When he doesn't receive the desired response, he visibly displays his frustration through head shaking and eye rolling.
Solicitor General Elizabeth Prelogar, the Biden administration's highest-ranking attorney at the court, adeptly defends the policies that cause Justice Alito considerable consternation. With unwavering composure and meticulousness, she offers her well-constructed rejoinders while remaining unfazed by his objections.
Associate Justice Samuel Alito sits during a group photo of the Justices at the Supreme Court in Washington, DC on April 23, 2021.
Erin Schaff/Pool/Getty Images
Justice Samuel Alito dismisses Democratic senators' request for recusal in journalist interview case, as their debates on topics like abortion, vaccines, and regulatory authority provide captivating exchanges in America's highest court.
When Supreme Court audio clips are shared on YouTube or other social media platforms, they often receive thousands, and sometimes even hundreds of thousands of views. This sparks lively debates among court-watchers regarding who made a stronger argument.
However, these exchanges hold significance beyond just providing dramatic entertainment in the iconic white marble setting. At the age of 43, Prelogar argues the most critical cases for the government. Her interactions with Alito, who is 73 years old, possess the power to sway other justices and ultimately impact whether the government emerges victorious or suffers defeat.
Prelogar will defend a law prohibiting individuals with domestic violence protective orders from possessing firearms at the lectern on Tuesday. Alito, a native of Trenton, New Jersey, previously stood at the same lectern that Prelogar now occupies.
After completing his education at Princeton and Yale Law School, he joined the Department of Justice, where he served for approximately five years in the solicitor general's office during the early 1980s. Alito was appointed as a US attorney in New Jersey by President Ronald Reagan and later by President George H.W. Bush for a prestigious appellate court position in 1990. Finally, in January 2006, President George W. Bush promoted Alito to the Supreme Court, where he succeeded the retiring Justice Sandra Day O'Connor.
Prelogar, a native of Boise, Idaho, graduated from Emory University and subsequently earned a degree from Harvard Law School. During her teenage years, she participated in state pageants and was crowned Miss Idaho in 2004. The scholarship funds she received from the pageant were used towards her law school education.
Prelogar recently expressed her affinity for appearing before judges on NPR's "Wait, Wait... Don't Tell Me!" This affinity may be attributed to her early experience in pageants, which has enhanced her courtroom presence and ability to speak succinctly, free from the common stumbling phrases that afflict many lawyers.
Prelogar's exposure to the workings of the Supreme Court began during her tenure as a law clerk for liberal Justices Ruth Bader Ginsburg and Elena Kagan. Between 2014 and 2019, she served as an assistant to the solicitor general, presenting lesser-known cases before the justices. Additionally, she was assigned to the investigation into Russian interference in the 2016 presidential election led by special counsel Robert Mueller. In 2021, President Joe Biden nominated Prelogar to be the US solicitor general, and she was confirmed by the Senate with a vote of 53-36. Only six Republicans joined the Democrats in approving her nomination.
Unprecedented, but to what end?
When it comes to Supreme Court oral arguments, there is always a sense of anticipation. It revolves around how effectively the lawyers at the lectern will present their case and how much insight the justices will offer into their own perspectives. These public sessions often become a platform for the justices to assert their viewpoints, disguising them as questions and effectively commencing negotiations with their fellow colleagues.
Prelogar, who frequently advocates for progressive positions, faces a challenging task due to the conservative majority in the court. For approximately fifty years, the court was typically divided 5-4 between conservative and liberal justices. However, since 2020, the composition has shifted to a 6-3 conservative-liberal ratio.
Recently, Alito engaged in a heated exchange with Prelogar concerning a federal agency that was created to safeguard consumers from potentially harmful mortgages, auto loans, and credit card agreements.
The case started when payday lenders questioned the constitutionality of the funding structure of the Consumer Financial Protection Bureau. In order to maintain the agency's autonomy, Congress mandated that its financing come from the Federal Reserve System on an annual basis, funded through bank fees, rather than through regular congressional appropriations.
The argument was intense in the courtroom, with Alito challenging Prelogar's justifications. However, the true intensity may be somewhat diluted when reading the transcript.
"There have been agencies funded in this manner since the inception of this nation," Prelogar informed the justices while advocating for the establishment of the bureau that was formed following the country's financial crisis in 2008.
Video Ad Feedback
Hear what happened inside the Supreme Court after historic ruling
05:22
- Source:
CNN
"What is your best historic, your single best example, of an agency that has all of the features that the CFPB has â¦" Alito asked in one of his series of queries.
"I believe our most significant historical example is the Customs Service," replied Prelogar. "Established by the first Congress in 1789, the Customs Service received continuous and unrestricted funding from the revenues it collected."
Unsatisfied, Alito persisted, "Can you provide an example of an agency that obtains its funding from another agency that, in turn, does not rely on traditional congressional appropriations but instead receives funds from the private sector?"
"I cannot provide you with another example of a source that is exactly similar to that one," Prelogar argued. "However, I strongly disagree with the assumption that it could potentially have any constitutional significance. This case primarily concerns Congress's authority and control over budgetary matters."
"So," Alito interjected, "if I understand correctly, you are saying that you do not believe... But you believe that even if it is unprecedented, it is not relevant for the current matters at hand. Is that correct?"
Overcoming nerves
"Yes, mainly," remarked Prelogar, toying with a touch of audacity. "The uniqueness lies in the fact that the CFPB is the sole agency associated with such an acronym. Undoubtedly true, yet it does not align with constitutional principles."
Chief Justice John Roberts, with prior experience in the solicitor general's office as well as private appellate advocacy, proved to be an exceptional advocate. Renowned for his meticulous preparation, he presented his arguments with clarity and in a conversational manner.
Throughout his career, Roberts openly admitted feeling anxious before presenting his arguments. However, as soon as he gripped the lectern and commenced his presentation, his nerves visibly subsided, evidenced by his steady hands.
Roberts, on the other hand, also poses tough questions to Prelogar and the Biden administration's policies from the bench. However, unlike Alito, his demeanor lacks the obvious hostility that often accompanies his line of questioning.
In January 2022, a heated exchange took place during an argument regarding the Biden administration's Covid-19 vaccine mandate for federal workers. Alito initiated the questioning with a mix of frustration and conviction, clearly asserting his authority as several other justices shared his skepticism towards the extent of government authority.
"I want to clarify that I am not questioning the safety of the vaccines, as they have been approved by the FDA and deemed safe. It is widely acknowledged that the benefits of the vaccines outweigh the risks. I want to emphasize that I am not disputing this fact, although I anticipate potential misunderstandings. My main point is that I acknowledge the presence of risks alongside the benefits in these vaccines, as well as in other vaccines and medications. It is possible for some individuals who receive vaccinations or take highly beneficial medications to experience adverse effects. This holds true for the vaccines in question as well."
"Indeed," Prelogar acknowledged, "however, it is important to recognize that the risk of remaining unvaccinated is significantly higher, by a considerable margin."
"But...there is an element of risk, isn't there?" Alito interjected. "Do you disagree with that?"
"There may be a minimal risk for certain individuals, but it is important to emphasize that the FDA-approved and authorized vaccines are unquestionably safe and effective. In fact, they are the most effective option available."
Alito interrupted her: "No, that is not what I am trying to convey. I want to make it absolutely clear that I am not making that point. I am not making that point. I am not making that point. I am not making that point. Is there any instance where OSHA has implemented another safety regulation that presents an additional or different risk for employees?"
Prelogar stated that she could not think of anything similar to this situation. However, she believed that suggesting that OSHA is prohibited from employing the most common, routine, safe, effective, and proven strategy to combat infectious diseases at the workplace would deviate from the intended interpretation of the statute. During their conversation, they both criticized the transcription service's high number of broken sentences and dashes.
After a clip of the argument regarding the vaccine mandate by the Occupational Safety and Health Administration (OSHA) went viral, it garnered over 500,000 views and received more than 6,000 comments.
The administration faced a 6-3 defeat along political lines.
Affirmative action and the nation that we aspire to be
According to Jeffrey Wall, a former high-ranking official in the solicitor general's office under the Trump administration, the solicitor general appointed by President Biden will encounter challenges due to a court that tends to be critical of government authority.
Speaking at a Practising Law Institute review in August, Wall expressed his praise for the solicitor general's record, stating that General Prelogar should feel satisfied with how the term went, given all the circumstances. Wall also mentioned the high-profile administration loss in the Harvard and University of North Carolina affirmative action cases from the previous session, noting that nobody believes the outcome of these cases was influenced by the solicitor general's advocacy.
Several moments of tension arose during the affirmative action arguments, known as Alito-Prelogar moments. The Biden administration supported admissions practices that took into account students' race as a means to promote diversity on college campuses.
Prelogar emphasized the potential consequences for the military if racial affirmative action were to be abolished in service academies or colleges that have ROTC programs, which train individuals to become officer candidates.
Alito interrupted, questioning the viability of a plan without a ROTC program and expressing his belief that it was a deceptive reference to ROTC and a larger appeal to the military. He then inquired if a plan permissible at a college with a program would be impermissible at one without.
Prelogar responded by clarifying that they were not asking the court to make that distinction. She asserted that the government's interest extends to other federal agencies, the federal government's employment practices, and the need for leaders trained to succeed in diverse environments in our country.
"Well," Alito responded, "then I fail to grasp the significance of your statement regarding the connection between college education, whether at a service academy or a school with an ROTC program, and the military's requirements, if it is inconsequential whether the school lacks an ROTC program and therefore does not train any officers."
Prelogar argued that the military's commitment to diversity extended beyond the service academies. "We strongly believe in the importance of diversity and universities being able to attain the educational advantages that are associated with diversity," she expressed.
Alito later criticized Prelogar's attempt to convince the court to consider "the vision of the nation we strive to become," implying that her approach lacked sincerity.
In her closing statements during the dispute, Prelogar argued, "Diversity is crucial for business solutions in corporate America. It is also a vital component for innovation and improving health outcomes in the medical community and among scientific researchers."
Alito questioned Prelogar whether she intended to expand the current education-related controversy to include employment. "Is that your intention?" he asked.
"No, Justice Alito," responded Prelogar. "I was merely suggesting that the experiences students have during their college years can greatly impact their future trajectory."
"Why did you bring up corporate America?" he asked.
"Because, similar to the United States military, corporate America depends on a diverse pool of individuals who have been exposed to diverse educational environments and who themselves represent the diversity of the American population," she explained.
In the end, the dispute was resolved with a 6-3 vote along ideological lines, resulting in Harvard and the University of North Carolina, along with the Biden administration, losing the case. Chief Justice Roberts, in his majority opinion co-signed by Justice Alito and other right-wing justices, included a footnote specifying that the decision did not extend to military academies such as West Point. Recently, the organization Students for Fair Admissions, which initiated the lawsuits against Harvard and the University of North Carolina, has filed additional cases against the service academies.
In fair Verona
Not all Alito-Prelogar matchups result in ideological divisions, as evidenced by one of their earliest encounters. In a unique and theatrical event in December 2016, the Washington-based Shakespeare Theatre Company organized a mock trial. The case centered around the tragedy of Romeo and Juliet, with their parents (the Montagues and Capulets) suing Friar Laurence for wrongful death. Friar Laurence had married the young couple in secret and aided Juliet in faking her own death.
Alito served as the "chief justice" alongside four "associate justices," two of whom were future Supreme Court justices Brett Kavanaugh and Ketanji Brown Jackson (promoted later on).
Prelogar provided the defense for the Friar, incorporating different political and pop culture (Taylor Swift) allusions that were appropriate for the overall theater audience and the timing following the November 2016 election.
Friar Lawrence, according to Prelogar, simply aimed to restore Verona's greatness. She concluded her remarks with a sonnet, stating that iambic pentameter is remarkably persuasive.
Following the mock panel's discussion, Alito and his colleagues reconvened on the bench to announce their verdict. He commended the lawyers from both parties involved in the case. With a humorous remark, he added, "Henceforth, I shall anticipate all briefs from the solicitor general's office to be in iambic pentameter."
Prelogar emerged as the victor in her defense of the Friar. Interestingly, she also secured the majority vote from the audience, even though Alito made a lighthearted remark about the insignificance of their opinion due to the principality.
