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As the Supreme Court wraps up a very busy term, there’s a familiar face who won’t be returning to argue cases before the court next fall. Solicitor General Donald Verrilli, the Obama administration’s top lawyer who defended Obamacare and argued for immigration reform, sat down recently with Judy Woodruff for an exit interview.
But, first: As the Supreme Court wraps up an eventful term, a look back with a lawyer who has argued his share of cases, retiring Solicitor General Donald Verrilli.
Judy sat down with him recently on his final day on the job, after the court's ruling on immigration and affirmative action, but before yesterday's landmark decision on abortion rights.
Here is that exit interview.
Don Verrilli, thank you very much for talking with us.
DONALD VERRILLI, Outgoing Solicitor General:
Thank you, Judy. It's great to be here.
So you have been the solicitor general for the past five years for a Democratic administration arguing cases before a majority conservative Supreme Court. How do you think it's gone, on balance?
Well, on balance, pretty well. We have won some, we have lost some, but I think we have won most of the big, important cases, health care, marriage equality.
I think on most of the cases that really matter as an historical — from an historical perspective, we have done pretty well.
So you would argue the administration has done better than the conservative point of view?
Well, I guess what I would say about that is that we managed to persuade a court, a majority of whose members, before Justice Scalia passed away, you would say are conservative, that we had the right answer on the law on the big cases.
Well, just last week, the justices handed down a decision on the president's immigration plan, which you argued.
It's being seen as dealing a pretty significant blow to this president's legacy. How do you see what happens going forward on immigration after that decision?
So, about the decision itself, you know, whether one agrees with the position of the administration or whether one disagrees with the position, I think probably everybody would agree that it isn't ideal to have that question left in limbo with a 4-4 tie, affirming a divided vote of a lower court.
I don't think anybody thinks that's an ideal outcome here. And what that I means, I think, is that the legal question remains open for the future about the president's authority, and then the question as a policy matter about what we're going to do about the significant problem that the — this policy was trying to address, what we're going to do about that remains open for the future.
So many unresolved questions.
Yes. I think very little was resolved by this.
And we know there was another important ruling the court handed down last week on affirmative action, another case you argued.
Were you surprised by Justice Kennedy, the majority opinion essentially in favor of using race as some consideration in college admissions?
Well, we were very pleased that the court, Justice Kennedy's opinion for the court, accepted the argument that we put forward on behalf of the United States and accepted the argument that the University of Texas put forward.
And I think I was a little bit surprised that it was as definitive as a victory as it was. I had thought there was some chance that that case might be sent back to the lower courts for more factual development, but it was a definitive victory.
It is said that there is a measure of independence for the solicitor general, representing the administration before the Supreme Court, but I think there are also those who would argue that is really not possible, when the solicitor general is a sub-Cabinet figure serving under a president.
How do you see this question of independence or not for your job?
Well, you know, the independence is quite real, and I think every solicitor general has had the benefit of it, and I think every president has respected it.
This president has respected it to an enormous degree. I have very little interaction with the White House on the work of the office. I don't go over there and have regular meetings. I don't send them reports. They let me make the judgment about what I think the best answer is for the United States.
Now, there are a couple times every year where I think the right answer for the United States, the position we're going to take is something that might surprise them. And I will call the White House counsel and give them a heads-up at that point. But I do get a significant degree of independence.
A different question: How do you see this question of whether the Supreme Court has become too politicized? We know there's a lot of comment about that, a lot of — a number of people who say it's just — it's gone too far, it's affecting too many cases.
Is this something the American people should be worried about?
You know, I really don't see it that way.
You do hear that critique a lot of the court. I don't see it that way, because I think that presidents pick justices because of what they expect from the justice's judicial philosophy. So maybe you can say it's political in that sense.
But I really genuinely don't think that the justices are making political judgments. I genuinely think they're making the judgments that their judicial philosophy leads them to make. And it does sometimes sort out, the bottom line does sometimes sort out on what looks like partisan terms.
But, you know — but I agree with the chief justice when he says it's not a partisan process, it's not a political process, just from my observation over five years.
It just seems particularly evident right now with this empty seat on the court, with the death of Justice Scalia and the disagreement over who should fill that slot. We're seeing 4-4 decisions time and again.
But, as I said about the immigration decision, whichever — whatever you think about the administration's policy here, a 4-4 resolution of it is not an ideal thing. Having that seat filled, I think this case illustrates why it's important.
What are the important decisions that you see the court likely handing down in the next year or two that have the most effect on the American people?
So, the thing that I see continuing over time that the court's been struggling with during my five years in the job and is going to continue to struggle with is the balance between individual privacy and the government's use of technology in law enforcement and national security.
You see this over and over again. You know, the advances in technology have made our traditional notions of privacy and our legal notions of privacy almost obsolete. And they really need to be refashioned to meet the challenges that government's use of technology poses.
And that clash has come up over and over again in the last five years, and I think that's going to intensify over time. I just think it's going to be a significant part of what the Supreme Court and the lower federal courts have got to grapple with in the coming years.
It's asking a lot of these justices to understand this new technology, isn't it?
It's a huge challenge.
And they try to be very careful and incremental and prudent about it for precisely that reason, that I think they're feeling a little bit at sea, because they're not experts on the technology. And so they do try to be careful about it, but it's a big challenge.
The solicitor general of the United States for a few more hours.
Don Verrilli, thank you very much.
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