In the Supreme Court, Francisco convinced the justices to effectively strip President Obama of the recess appointments power. He represented religious conservatives attacking the Obama administration’s efforts to expand access to birth control. And persuaded the Court to legalize many forms of political bribery.
In short. Francisco built his law practice as if his primary goal was to troll the libs.
Flash forward a few years, and Francisco is now one of the most powerful and influential lawyers in the country. As Solicitor General, Francisco shapes the Trump administration’s appellate litigation strategy and acts as one of the top advisers to the justices themselves. And, as one of the Justice Department’s top officials, Francisco is next in line to supervise Special Counsel Robert Mueller if Trump fires Deputy Attorney General Rod Rosenstein.
Francisco’s record suggests that, if given the power to rein in this threat to Trump’s presidency, he would do so enthusiastically.
As Solicitor General, Francisco helped transform his office from its traditional role as the American people’s advocate before the Supreme Court into a litigation chop shop advancing Republican causes.
In the lead up to the 2016 election, Francisco co-authored an op-ed touting the Trumpian claim that the FBI had treated Hillary Clinton “with kid gloves” when it investigated her IT practices and ultimately determined that no charges were warranted.
At a 2016 conference hosted by the Federalist Society, the conservative legal group that Trump relies upon to pick many of his judicial nominees, Francisco offered a vision of the Second Amendment that was straight out of the National Rifle Association’s paranoid fantasia about armed citizens shooting back at their government. He also began his remarks with a declaration of loyalty.
“I always say yes to the Federalist Society.”
The Tenth Justice
The Solicitor General is a uniquely influential lawyer — so much so that solicitors general are often described as the “tenth justice” because of their profound impact on the Supreme Court’s conduct. In any given term, the Solicitor General is likely to file a brief in the majority of argued cases heard by the Court — the Solicitor General’s office participated in 58 of the 72 decided cases in 2014, either as a party or an amicus. Historically, the Court backs the Solicitor General’s preferred outcome in 60 to 80 percent of cases in which the United States expresses a view.
The Court, moreover, routinely seeks the Solicitor General’s advice on whether it should hear a particular case. Indeed, this practice is so common that Supreme Court practitioners refer to it by an acronym — a “CVSG,” which stands for “call for the views of the Solicitor General.”
Yet all of this influence comes at a price — or, at least, it has in the past. The Solicitor General is the ultimate “repeat player” in Supreme Court litigation. He is the custodian of more than a century of credibility that past officeholders earned by placing the institutional interests of the Court, the legal system, and the United States itself before those of any particular administration.
As former Solicitor General Drew Days once said of the office, the nation’s top litigator’s “responsibility is ultimately not to any particular agency or person in the federal government but rather ‘the interests of the United States’ which may, on occasion, conflict with the short-term programmatic goals of an affected governmental entity.”
At times, this insistence that the long term interests of the United States must triumph over short term political goals proves immensely frustrating to an administration’s allies. The Justice Department, for example, is exceedingly reluctant to concede that speculative limits exist on Congress’ power, and for good reason. If DOJ concedes today that some hypothetical future law would be unconstitutional, Congress may someday pass a similar law, and the Justice Department’s concession could be used against it in federal court.
During the 2012 litigation seeking to repeal the Affordable Care Act, former Solicitor General Paul Clement exploited this institutional constraint to great effect. Clement argued, falsely, that if the Supreme Court upheld Obamacare, then there would no longer be any limits on the federal government’s power to legislate. That led Justice Anthony Kennedy to ask a fairly obvious question of then-Solicitor General Donald Verrilli — could Verrilli “identify for us some limits” on the federal government’s power to regulate commerce.
Verrilli’s answer was halting and imprecise, when he could have delivered a crisp list of hypothetical laws that are unconstitutional under the Obama administration’s legal theory. At the time, it looked like Verrilli might have given away the case, and sacrificed Obamacare along with it.
But it’s also easy to guess why Verrilli did so. His job was to represent the institutional concerns of the United States, even when those institutional concerns weighed against the signature legislative accomplishment of the President of the United States. In that moment, Verrilli placed the perpetual interests of the United States government before the short term need to win this particular case.
Many observers criticized Verrilli for how he handled this argument. I am one of them. But in his response to Justice Kennedy, Verrilli acted in the grand tradition of solicitors general who act as custodians of a grander institution, and not as partisans.
“How many times?”
Compare Verrilli’s conduct to the way Francisco handled a case brought by anti-union activists seeking to defund public sector unions.
For fairly obvious reasons, government employees have weaker First Amendment free speech protections within the context of their job. A public school principal can order a math teacher to actually teach math, and not, say, 16th century Asian art, even though a private citizen could not be compelled to speak on a certain subject against their will. If the government didn’t have some power to control the speech of its own workers, it would be impossible for it to manage a workplace.
But what happens when a government worker expresses a political view that their boss disagrees with? Or blows the whistle on a supervisor who is spending public funds irresponsibly?
The Supreme Court started to explore this question in Pickering v. Board of Education. Pickering is a half-century old case, and subsequent decisions have complicated the rules governing public sector workers considerably. But the general rule that emerges from the Pickering line of cases is that a government worker asserting a First Amendment claim against their employer must first show that they spoke on “a matter of legitimate public concern.”
If the employee can clear this bar, the case then moves on to its second step, where a court asks “whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.” But if the employee cannot clear this bar, they lose their case.
Which brings us to Janus v. AFSCME, the anti-union case.
The thrust of the plaintiff’s argument in Janus is that all collective bargaining between a government employer and a union is a matter of public concern — a claim that, if accepted by the Court, could lead to many unions losing a major funding source that they need to operate. Arguing before the Supreme Court, ostensibly on behalf of the United States government, Francisco embraced this anti-union theory and agreed that all speech relating to “employment conditions, about pay, about vacation . . . about all of the various employee benefits” provided to government workers are matters of public concern.
That led to a rather awkward exchange with Justice Elena Kagan, herself a former solicitor general, who noted that Francisco’s expansive definition of what constitutes a matter of public concern was “a very unusual position for the government to be taking.” If the Court were to agree with Francisco’s position, that would mean that the United States would have to litigate all future “employee/employer disputes under the second step of Pickering rather than under the first.”
Francisco, in other words, effectively argued that more federal employees should be able to drag the federal government into court, and force the government into a protracted trial over whether the way it managed a particular employee was justified. Moreover, Francisco took this position despite the fact that he was appearing in Court on behalf of the United States government.
Unlike Verrilli, who avoided arguments that would advance the political interests of his party at the expense of the institutional interests of the United States, Francisco decided that it was more important to undermine unions — a frequent antagonist of the Republican Party — than it was to protect his own client’s interest in avoiding future lawsuits.
A few minutes after Francisco’s exchange with Kagan, there was an even more awkward exchange with Justice Sonia Sotomayor.
Francisco’s argument in Janus did not merely run counter to the interests of his client, it was also at odds with the argument Verrilli presented to the Supreme Court when the exact same issue was before the Court in 2016 (that case, Friedrichs v. California Teachers Association, split the Court 4-4 after Justice Antonin Scalia’s death).
And, as it turns out, Janus isn’t the only case where Francisco has abandoned a long-held view in favor of one that happened to align with the Republican Party’s immediate interests. “How many times this term already,” Sotomayor asked Francisco during the Janus argument “have you flipped positions from prior administrations?”
According to Georgetown law Professor Marty Lederman, the answer to Sotomayor’s question is at least a dozen times. Lederman counted 12 distinct issues where the Justice Department flipped its view in an appeal after Donald Trump started filling the department’s top jobs — more that half of which took place in briefing before the Supreme Court. That’s a simply astounding number when you consider that the Court only heard arguments in 63 cases this term.
The cases Lederman identifies include an effort to purge voters from Ohio’s voter rolls (Francisco’s office is for it), and an effort to protect transgender students from discrimination (DOJ is against this effort). They involve voter suppression laws (which DOJ is for), workers’ rights to bring class action lawsuits against their employers (which DOJ is against), and the right of LGBTQ Americans to be free from discrimination (DOJ is on the pro-discrimination side).
Now, in fairness, at least some of these cases are not yet before the Supreme Court — though, under the Justice Department’s rules, “all appeals to the lower appellate courts in cases handled by divisions of the Department and United States Attorneys, and all petitions for certiorari and direct appeals to the Supreme Court must be authorized by the Solicitor General.”
Similarly, some of the briefs in these cases were filed during a brief interregnum when Francisco’s deputy Jeff Wall ran the Office of the Solicitor General. A federal law prevented Francisco from serving as acting head of the office while he was also awaiting confirmation to lead it on a permanent basis, but Francisco served as a “senior adviser” within the Justice Department while Wall was acting Solicitor General, and it is likely that Francisco was consulted on matters that he would be in charge of after his confirmation.
In any event, since Trump took office, the Office of the Solicitor General has rapidly transformed itself into a strong advocate for conservative legal causes, and Francisco appears to be an enthusiastic champion of this transformation. So much so, that he’s even willing to advocate against the long term interests of his only client in order to advance conservative goals.
Meanwhile, an unstable and increasingly angry president occupies the White House. Trump reportedly views Deputy Attorney General Rod Rosenstein as a threat, because the president feels that Rosenstein has not done enough to hinder Special Counsel Robert Mueller’s investigation into his campaign’s ties to Russia. If Trump fires Rosenstein, the job of supervising Mueller will fall to Francisco.
Everything in Francisco’s record suggests that he is a passionate conservative, eager to use his office to advance ideological causes. Someday very soon, Trump may hand Francisco the power to shut down Mueller’s investigation.