Podcast Summary: Strict Scrutiny – "No Choice but to Stan: A Deep Dive on Solicitor General Elizabeth Prelogar"

Introduction

In the September 23, 2024 episode of Strict Scrutiny, hosted by constitutional law professors Leah Litman, Kate Shaw, and Melissa Murray from Crooked Media, listeners are treated to an insightful and celebratory exploration of Elizabeth Prelogar's exceptional role as the Solicitor General of the United States. Breaking away from their usual critical tone, this two-part episode shifts focus to laud Prelogar's formidable advocacy before the Supreme Court, showcasing why she has become a beloved figure among legal scholars and enthusiasts alike.

Celebrating Elizabeth Prelogar

Kate Shaw opens the episode with an unexpected and heartwarming introduction, shifting the conversational gears from their typical analytical discussions to a tribute for Elizabeth Prelogar. Shaw humorously compares the Justices' interactions with Prelogar to discerning burger preferences, illustrating Prelogar's unique ability to "own" Justices like Samuel Alito and Neil Gorsuch in court arguments (00:00–03:07).

Pam Karlan Joins the Conversation

The hosts welcome Pam Karlan, the Kenneth and Harle Montgomery Professor of Public Interest Law at Stanford and co-director of the Supreme Court Litigation Clinic, who provides expert insights into Prelogar's distinctive advocacy style (02:32). Karlan emphasizes Prelogar's comprehensive command of case facts and her unwavering stance, traits that set her apart in the courtroom.

Prelogar’s Impact in the Supreme Court

Melissa Murray delves into specific instances where Prelogar has effectively challenged and influenced Supreme Court Justices. One notable example is Prelogar's handling of Justice Alito during the Moyle v. United States case, where she adeptly confronted Alito on Article III requirements, leaving him "frustrated" and conceding key points (17:07–18:43).

Strategic Advocacy Techniques

Kate Shaw highlights how Democratic Justices, notably Justice Kagan and Justice Jackson, frequently invite Prelogar to elaborate on her arguments, recognizing the strength and clarity she brings to the table. This practice is rare, as Justices typically retain airtime for themselves, underscoring Prelogar's exceptional persuasive capabilities (03:50–08:00).

Notable Courtroom Exchanges

Several pivotal exchanges are examined:

• Rahimi v. United States: Justice Kagan's invitation to Prelogar to "write the Court's opinion" exemplifies the trust and respect Prelogar commands (10:23).

• Relentless vs. Department of Commerce: Prelogar’s ability to reshape Justices’ understanding of Chevron deference showcases her influence on significant legal doctrines (08:18–11:10).

• Dobbs v. Jackson Women’s Health Organization: Prelogar's opening and closing arguments here are celebrated for their profound impact and clarity, aligning with the show's theme of her exceptional advocacy (33:39–37:26).

Flummoxing Conservative Justices

Throughout the episode, the hosts play clips demonstrating how Prelogar adeptly challenges conservative Justices:

• United States vs. Texas (SB8): Prelogar questions the legality of enjoining a judge from performing lawful acts, prompting Justices to grapple with the abstract nature of Texas's injunction (19:03–19:31).

• Moyle v. United States: Her confrontation with Justice Alito regarding regulatory changes and standing showcases her ability to hold conservative Justices accountable (21:30–27:59).

• NFIB vs. OSHA: Prelogar's calm yet firm rebuttals to Justice Alito’s assertions highlight her strategic precision in legal argumentation (38:02–50:27).

Pam Karlan’s Analysis

Karlan underscores Prelogar's dual strengths: her meticulous understanding of legal intricacies and her unyielding commitment to justice. She points out that Prelogar not only masters the facts but also maintains composure and respect, even when pushing back against tough Justices like Gorsuch and Alito (21:13–33:03).

Conclusion: The Solicitor General's Exemplary Advocacy

The episode concludes with reflections on Prelogar's overarching mission to promote justice and the rule of law. Linda Litman references Frederick Lehman's philosophy, emphasizing that Prelogar's efforts are about "getting the law right" rather than merely winning cases (49:52–50:02). Pam Karlan offers high praise, likening being on the show to arguing in a challenging court, highlighting the mutual respect between the hosts and their guest (50:02–50:27).

Notable Quotes

• Melanie Murray (02:34): "She runs circles around Brett Kavanaugh, regularly and publicly owns Sam Alito."

• Pam Karlan (06:47): "It's pretty rare for Justices to invite an advocate to make their argument at length. This speaks volumes about Prelogar's abilities."

• Justice Alito (23:48): "Why did you use the term 'responsible' if what you meant was 'dangerous'?"

• Leah Litman (56:48): "Originalism is trash. Dobbs showed they’re going back in time to re-enshrine biases of the past."

Final Thoughts

This episode of Strict Scrutiny serves as both a tribute and a case study of Elizabeth Prelogar's exceptional role within the Supreme Court's legal battles. By showcasing her strategic brilliance and unwavering commitment to justice, the hosts paint a comprehensive picture of why Prelogar is a pivotal figure in contemporary constitutional law. Listeners gain not only an appreciation for her legal prowess but also insights into the dynamics of Supreme Court advocacy.