{"id":42885,"date":"2023-11-06T13:24:40","date_gmt":"2023-11-06T13:24:40","guid":{"rendered":"https:\/\/prosfunds.com\/politics\/the-nonstop-sparring-match-between-the-conservative-justice-and-liberal-biden-attorney-at-the-supreme-court\/"},"modified":"2023-11-06T13:24:42","modified_gmt":"2023-11-06T13:24:42","slug":"the-nonstop-sparring-match-between-the-conservative-justice-and-liberal-biden-attorney-at-the-supreme-court","status":"publish","type":"post","link":"https:\/\/prosfunds.com\/?p=42885","title":{"rendered":"The nonstop sparring match between the conservative justice and liberal Biden attorney at the Supreme Court"},"content":{"rendered":"
\n

\n Justice Samuel Alito is the tip of the spear for conservatives challenging\u00a0the\u00a0Biden administration\u00a0during oral arguments at the Supreme Court.\n <\/p>\n

\n He\u2019s a fierce questioner, ready to trap advocates in their arguments. And he becomes demonstrably riled when he fails to get the answer he wants. He shakes his head and rolls his eyes.\n <\/p>\n

\n Solicitor General Elizabeth Prelogar is the Biden administration\u2019s top lawyer at the court, defending the policies that are the source of much of Alito\u2019s consternation. She responds to him with a steady pitch and precision.\u00a0And she is not derailed by what he puts down.\n <\/p>\n

\n Their\u00a0jousting over issues such as abortion, vaccines, and all manner of regulatory power offers some of the most riveting exchanges heard these days at America\u2019s high court.\n <\/p>\n

\n When excerpts from their Supreme Court audio appear on YouTube or other social media, it attracts thousands of views, sometimes hundreds of\u00a0thousands, as court-watchers debate\u00a0who got the better of the argument.\n <\/p>\n

\n Their back-and-forth provides more than drama in the white marble setting. Prelogar,\u00a043,\u00a0argues the government\u2019s most consequential cases. And the exchanges with Alito, 73,\u00a0have the potential to influence other justices and affect whether the government wins or loses.\n <\/p>\n

\n Prelogar will be at the lectern\u00a0on Tuesday\u00a0in a major Second Amendment case, defending a law that\u00a0prohibits\u00a0persons subject to domestic violence protective orders from possessing a firearm.\n <\/p>\n

\n Alito, a Trenton,\u00a0New Jersey, native, once stood at the lectern that Prelogar commands today.\n <\/p>\n

\n After graduating from Princeton and Yale Law School, he joined the Department of Justice and spent about five years in the early 1980s in the solicitor general\u2019s office. President Ronald Reagan named Alito a US attorney in New Jersey and President George H.W. Bush tapped him for a prestigious appellate court post in 1990. President George W. Bush elevated Alito to the high court in January 2006, to succeed the retiring Justice Sandra Day O\u2019Connor.\n <\/p>\n

\n Prelogar, who grew up in Boise, Idaho, graduated from Emory University and then Harvard Law School. As a teen she entered state pageants and won the Miss Idaho title in\u00a02004.\u00a0She said she used the pageant scholarship money for law school.\n <\/p>\n

\n \u201cIf you want to look at a through-line here, I like to go in front of judges,\u201d Prelogar said recently\u00a0about the experience on NPR\u2019s \u201cWait, Wait \u2026 Don\u2019t Tell Me!\u201d\u00a0The early pageant work may also contribute to her ease at the courtroom lectern and economy of language, shed of the usual \u201cums\u201d and \u201cahs\u201d that plague many lawyers.\n <\/p>\n

\n Prelogar first became familiar with the inner workings of the Supreme Court as a law clerk\u00a0to liberal Justices Ruth Bader Ginsburg and\u00a0Elena\u00a0Kagan. From 2014\u00a0to\u00a02019,\u00a0Prelogar\u00a0was\u00a0an assistant to\u00a0the solicitor general\u00a0arguing less prominent cases before the justices, and was separately detailed to an investigation into Russian interference in the 2016 presidential election, under\u00a0special counsel\u00a0Robert Mueller.\u00a0In 2021, President Joe Biden nominated her to be US solicitor general, and the Senate confirmed Prelogar by a vote of 53-36. Only six Republicans joined Democrats to approve her.\n <\/p>\n

\n Supreme Court oral arguments always begin with some element of suspense: How effectively will lawyers at the lectern make their case and what will justices reveal of their own views? The justices sometimes use these public sessions to press their own positions, with statements cloaked as questions, essentially beginning their negotiations with colleagues.\n <\/p>\n

\n Any lawyer arguing a progressive position, as Prelogar regularly does, faces an uphill climb, because of the court\u2019s conservative supermajority. For about a half century, the court was generally 5-4, conservative-liberal. Since 2020, it has been 6-3 conservative-liberal.\n <\/p>\n

\n A few weeks ago, Alito and Prelogar\u00a0sparred over\u00a0a federal agency established to protect consumers from risky mortgages, auto loans and credit card deals.\n <\/p>\n

\n The case began when payday lenders challenged the constitutionality of Consumer Financial Protection Bureau\u2019s funding structure. Congress \u2013 seeking to ensure the agency\u2019s independence \u2013 required it to be financed annually through the Federal Reserve System (which itself is funded through bank fees), rather than regular congressional appropriations.\n <\/p>\n

\n It was a spirited argument, although the intensity\u00a0in the courtroom\u00a0as Alito challenged Prelogar\u2019s justifications may be lost a bit in the\u00a0cool words from a transcript.\n <\/p>\n

\n \u201cThere have been agencies funded this way for every year of this nation\u2019s history,\u201d Prelogar told the justices, as she\u00a0defended\u00a0the bureau established after the country\u2019s 2008 financial crisis.\n <\/p>\n

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Hear what happened inside the Supreme Court after historic ruling<\/p>\n<\/p><\/div>\n<\/p><\/div>\n

\n \u201cWhat is your best historic, your single best example, of an agency that has all of the features that the CFPB has\u00a0\u2026\u201d Alito asked in one of his series of queries.\n <\/p>\n

\n \u201cI think our best example historically is the Customs Service,\u201d Prelogar responded. \u201cThe first Congress created the Customs Service in 1789. It gave the Customs Service a standing, uncapped source of funding from the revenues that the Customs Service collected.\u201d\n <\/p>\n

\n Not satisfied, Alito continued: \u201cWhat\u2019s your best example of an agency that draws its money from another agency that, in turn, does not get its money from a congressional appropriation in the normal sense of that term but gets it from the private sector?\u201d\n <\/p>\n

\n \u201cI can\u2019t give you another example of a source that\u2019s precisely like that one,\u201d Prelogar said, \u201cbut I would dispute the premise that that could possibly be constitutionally relevant. This is a case about Congress\u2019s own prerogatives over the purse, its authority.\u201d\n <\/p>\n

\n \u201cSo,\u201d Alito\u00a0declared,\u00a0\u201cI take it your answer is that you do not \u2026 But you think that to the extent it is unprecedented, it is unprecedented in a way that is not relevant for present purposes? Is that your answer?\u201d\n <\/p>\n

\n \u201cYes, primarily,\u201d Prelogar said,\u00a0adding with a bit of cheek. \u201cI think it would be unprecedented in a way that you could say this is the only agency that has the acronym CFPB. That\u2019s obviously true also, but it doesn\u2019t track the constitutional value.\u201d\n <\/p>\n

\n Chief Justice John Roberts, who before becoming a justice also served in\u00a0the solicitor general\u2019s\u00a0office and then as a private appellate attorney, was a superb advocate himself. Known for rigorous preparation, he was clear and conversational.\n <\/p>\n

\n Roberts also acknowledged over the years how nerve-wracking it was.\u00a0His hands would often shake before he stood up to argue, subdued once he grasped the sides of the lectern and began his presentation.\n <\/p>\n

\n From the bench, Roberts is a tough questioner of Prelogar\u00a0and Biden\u00a0administration\u00a0policy,\u00a0but without the palpable\u00a0antagonism\u00a0that often\u00a0comes from\u00a0Alito.\n <\/p>\n

\n During a January 2022\u00a0argument over a Biden Covid-19 vaccine requirement\u00a0for federal workers, Alito began a set of questions\u00a0with a tone that was alternately aggrieved and assured. He held the upper hand, as a majority of his colleagues were similarly skeptical about the reach of government power.\n <\/p>\n

\n \u201cI don\u2019t want to be misunderstood in making this point because I\u2019m not saying the vaccines are unsafe. The FDA has approved them. It\u2019s found that they\u2019re safe. It\u2019s said that the benefits greatly outweigh the risks. I\u2019m not contesting that in any way. I don\u2019t want to be misunderstood. I\u2019m sure I will be misunderstood. I just want to emphasize I\u2019m not making that point,\u201d Alito said.\n <\/p>\n

\n \u201cBut,\u201d Alito continued,\u00a0as he confidently addressed Prelogar,\u00a0\u201cis it not the case that these vaccines and every other vaccine of which I\u2019m aware and many other medications have benefits and they also have risks and that some people who are vaccinated and some people who take medication that is highly beneficial will suffer adverse consequences? Is that not true of these vaccines?\u201d\n <\/p>\n

\n \u201cThat can be true,\u201d Prelogar said, \u201cbut, of course, there is far, far greater risk from being unvaccinated, by orders of magnitude.\u201d\n <\/p>\n

\n \u201cBut\u00a0\u2026 there is some risk,\u201d Alito interjected. \u201cDo you dispute that?\u201d\n <\/p>\n

\n \u201cThere can be a very minimal risk with respect to some individuals, but, again, I would emphasize that\u00a0there would be no basis to think that these FDA-approved and authorized vaccines are not safe and effective. They are the single-most effective.\u201d\n <\/p>\n

\n Alito cut her off: \u201cNo, I\u2019m not making that point. I tried to make it as clear as I could. I\u2019m not making that point. I\u2019m not making that point. I\u2019m not making that point. There is a risk, right? Has OSHA ever imposed any other safety regulation that imposes some extra risk, some different risk, on the employee?\n <\/p>\n

\n Prelogar: \u201cI can\u2019t think of anything else that\u2019s precisely like this, but I think that to suggest that OSHA is precluded from using the most common, routine, safe, effective, proven strategy to fight an infectious disease at work would be a departure from how this statute should be understood.\u201d\n <\/p>\n

\n As the two continued, talking over each other, they challenged the transcription service based on how many broken sentences and dashes were recorded.\n <\/p>\n

\n When a clip of that exchange over the vaccine requirement of the Occupational Safety and Health Administration (OSHA) was posted online, more than 500,000 people viewed it, and more than 6,000 people left comments.\n <\/p>\n

\n The administration lost by a 6-3 vote along ideological lines.\n <\/p>\n

\n Affirmative action and \u2018the nation that we aspire to be\u2019
\n<\/h2>\n

\n Jeffrey Wall, who was a top official in the solicitor general\u2019s office during the Trump administration, said the Biden\u00a0solicitor general\u00a0necessarily faces \u201cheadwinds with \u2026 a court that is more generally skeptical of government power.\u201d\n <\/p>\n

\n Speaking\u00a0at a\u00a0Practising\u00a0Law Institute review in August,\u00a0Wall\u00a0overall praised the solicitor general\u2019s record.\u00a0\u201cI think that General Prelogar should feel pretty good, all things considered, about how the term went,\u201d he said.\n <\/p>\n

\n Wall\u00a0referred to the high-profile administration loss in the Harvard and University of North Carolina affirmative action cases\u00a0last\u00a0session, saying that \u201cno\u00a0one believes that those cases could have turned on the SG\u2019s advocacy.\u201d\n <\/p>\n

\n The affirmative action arguments offered\u00a0several Alito-Prelogar moments of tension.\u00a0The Biden administration was backing admissions practices that considered students\u2019 race as a factor in admissions to achieve campus diversity.\n <\/p>\n

\n Prelogar highlighted repercussions for the military if racial affirmative action was eliminated at the service academies or colleges with ROTC programs that prepare officer candidates.\n <\/p>\n

\n \u201cWhat about a college that does not have a ROTC program,\u201d\u00a0Alito interjected,\u00a0homing in\u00a0on what he plainly saw as a specious ROTC reference and larger appeal to the military interest.\u00a0\u201cWould a plan that would be permissible at a college that has a program be impermissible at the latter, at the one that doesn\u2019t have the ROTC program?\u201d\n <\/p>\n

\n \u201cWe\u2019re not asking the\u00a0court to draw that distinction,\u201d Prelogar told Alito, asserting that the government\u2019s interest extends \u201cmore broadly to other federal agencies, to the federal government\u2019s employment practices itself, and to having a set of leaders in our country who are trained to succeed in diverse environments.\u201d\n <\/p>\n

\n \u201cWell,\u201d Alito countered, \u201cthen I don\u2019t understand the relevance of what you\u2019re saying about the link between college education either at a service academy or a school with an ROTC program and the needs of the military if it doesn\u2019t matter whether the school has no ROTC program and therefore trains no officers.\u201d\n <\/p>\n

\n Prelogar said the military\u2019s interest in diversity was not confined to the service academies. \u201cWe believe deeply in the value of diversity and in universities being able to obtain the educational benefits that correlate with diversity,\u201d she said.\n <\/p>\n

\n Alito later seized on Prelogar\u2019s attempt to persuade the court\u00a0to\u00a0look at \u201cthe nation\u00a0that\u00a0we aspire to be\u201d; he suggested the approach rang hollow.\n <\/p>\n

\n \u201cFor corporate America,\u201d\u00a0Prelogar had said\u00a0as she concluded her arguments in the dispute, \u201cdiversity is essential to business solutions. For the medical community and scientific researchers, diversity is an essential element of innovation and delivering better health outcomes.\u201d\n <\/p>\n

\n Alito told Prelogar\u00a0it\u00a0appeared she wanted to take the controversy\u00a0at hand involving education\u00a0and extend it to employment.\u00a0\u201cIs that right?\u201d\u00a0he asked.\n <\/p>\n

\n \u201cNo, Justice Alito,\u201d Prelogar said. \u201cI was trying to make the observation that the experience of students in those four years of college have effects on the course of their life.\u201d\n <\/p>\n

\n \u201cThen why were you talking about corporate America,\u201d he\u00a0rejoined.\n <\/p>\n

\n \u201cBecause corporate America,\u201d she said, \u201clike the United States military, relies on having a diverse pipeline of individuals who had the experience of learning in a diverse educational environment and who themselves reflect the diversity of the American population.\u201d\n <\/p>\n

\n In the end, Harvard and the University of North Carolina, along with the Biden administration, lost the dispute by a 6-3 vote along\u00a0the familiar\u00a0ideological lines. Roberts, who wrote for the majority opinion that was signed by Alito and the other justices on the right\u00a0wing, added a footnote that said the decision did not apply to West Point and the other military academies. (Students for Fair Admissions, the group that started the Harvard and University of North Carolina lawsuits,\u00a0recently filed cases against the service academies.)\n <\/p>\n

\n To be sure, not all Alito-Prelogar matchups end with ideological divisions. And indeed one of their earliest encounters found the two aligned, in a true theatrical situation, as\u00a0the\u00a0Washington-based Shakespeare Theatre Company staged a mock trial in December 2016.\n <\/p>\n

\n The Romeo and Juliet tragedy was at the center of the mock case as it tested a wrongful death lawsuit brought by their parents (the Montagues and Capulets) against Friar Laurence, who had secretly married the young couple then helped Juliet fake her death.\n <\/p>\n

\n Alito presided as the \u201cchief justice\u201d with four \u201cassociate justices,\u201d two of whom happened to be then-lower court judges Brett Kavanaugh and Ketanji Brown Jackson (eventually elevated to the real Supreme Court).\n <\/p>\n

\n Prelogar defended the Friar. Befitting the general theater audience and timing after the November 2016 election, her defense included various political and pop culture (Taylor Swift) references.\n <\/p>\n

\n Of Friar Lawrence,\u00a0Prelogar\u00a0said at one point, \u201cHe just wanted to make Verona great again.\u201d Then she delivered her closing remarks in a sonnet form, \u201cbecause Iambic pentameter is exceedingly persuasive.\u201d\n <\/p>\n

\n After the mock panel deliberated, Alito and the others returned to the bench to deliver their ruling. He praised the lawyers on both sides of the case. \u201cFrom now on,\u201d he quipped, \u201cI\u2019m going to expect all the briefs from the solicitor general\u2019s office to be in iambic pentameter.\u201d\n <\/p>\n

\n He then announced that Prelogar had prevailed in her defense of the Friar. Referring to the fact that the audience\u00a0had separately taken its own vote, Alito joked, \u201cSince this is a principality, it really doesn\u2019t matter how the people voted.\u201d\n <\/p>\n

\n Prelogar, it turned out, won that vote, too.\n <\/p>\n<\/p><\/div>\n

Read the full article here<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

Justice Samuel Alito is the tip of the spear for conservatives challenging\u00a0the\u00a0Biden administration\u00a0during oral arguments at the Supreme Court. He\u2019s a fierce questioner, ready to trap advocates in their arguments. And he becomes demonstrably riled when he fails to get the answer he wants. He shakes his head and rolls his eyes. Solicitor General Elizabeth […]<\/p>\n","protected":false},"author":1,"featured_media":42886,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"content-type":"","footnotes":""},"categories":[39],"tags":[],"class_list":{"0":"post-42885","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-politics"},"yoast_head":"\nThe nonstop sparring match between the conservative justice and liberal Biden attorney at the Supreme Court | Prosfunds<\/title>\n<meta name=\"description\" content=\"Justice Samuel Alito is the tip of the spear for conservatives challenging\u00a0the\u00a0Biden administration\u00a0during oral arguments at the Supreme Court. 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