U.S. Solicitor General Verrilli Discusses Office's Role in Civil Rights Cases

Donald B. Verrilli, Jr., the 46th Solicitor General of the United States, recently delivered the 2013–14 Tyrrell Williams Lecture, focusing on “The Solicitor General and Civil Rights Law: Historical Perspectives.” His topic provided an insightful backdrop to his role in several recent civil rights cases.

In June, the U.S. Supreme Court handed down significant rulings in three important civil rights cases and dismissed another for lack of standing. The court’s actions grabbed headlines and filled op-ed pages for weeks as they concerned the hot-button topics of race-conscious college admissions policies, voting rights, and same sex marriage.

“It is tempting to see these decisions as bringing one chapter in the nation’s civil rights struggle to a close and opening up a new one, but that oversimplifies,” Verrilli told the overflow crowd of students, staff, faculty, and guests. “These decisions are complex, nuanced, and their effects on the development of constitutional law and the future of our polity remain to be seen.”

However, Verrilli added that the cases were joined by one common thread: the U.S. government, represented by the Office of the Solicitor General, participated in all of them. In deciding what position to take on a case—or whether to participate in a case at all—Verrilli said the Solicitor General must keep two considerations in mind: institutional responsibility and historical contingency.

“A great weight of responsibility comes with the knowledge that the Solicitor General’s decisions can make a difference not only in how the Supreme Court decides a case, but on what shape the future may take,” he said.

Verrilli then discussed the history of the Office of Solicitor General from its creation to the present, focusing on the positions Solicitors General have taken on civil rights cases. He divided that history into four sections: from the office’s founding in 1870 to Plessy v. Ferguson (1896), Plessy v. Ferguson to World War II, World War II to the 1960s, and the court’s rulings in June 2013.

The Department of Justice Act of 1870 created the office, just five years after the end of the Civil War. It was thus inevitable that the office would address civil rights issues, and President Ulysses S. Grant formalized that connection by appointing Benjamin Bristow—a staunch civil rights activist—as the nation’s first Solicitor General. The next Solicitor General, Samuel Phillips, was a federal prosecutor from the former slave state of North Carolina. Bristow worked to get the court to support his enforcement of the 1866 Civil Rights Act, and Phillips fought for the Civil Rights Act of 1875’s barring of racial discrimination in public accommodations.

The Supreme Court’s ruling in Plessy upheld a Louisiana law that made railroads provide “equal but separate accommodations for the white and colored races” and forbid African Americans from travelling in “white” railcars. In its wake, much “Jim Crow” legislation was enacted, white supremacy groups consolidated their power, and African Americans faced disenfranchisement.

“The U.S. did not push back at all against ‘separate but equal,’ and by the time of President Woodrow Wilson, the federal government had segregated the departments of the treasury, the navy, and the post office,” Verrilli said. “The U.S. can be understood as exercising prudent judgment and preserving its institutional credibility, but the question of historical contingency looms large. Would it have been more than 50 years before the court was ready to face segregation again?”

The years between the two world wars were “a period of all-out retreat” as the Solicitors General chose not to participate in de jure segregation cases before the court, Verrilli said, but in 1947 the Committee on Civil Rights issued a report calling for bold changes in many areas of American life. The next year, the Supreme Court ruled in Shelley v. Kraemer that racially restrictive housing covenants violated the 14th Amendment. A few years later, Solicitor General Philip B. Perlman asked the court to overrule Plessy and to expand the Due Process Clause of the 5th Amendment to subject the federal government to equal protection constraints.

The government had “passed a Rubicon.” In 1954, when the court issued the Brown v. Board of Education ruling on school desegregation, the Solicitor General developed the “all deliberate speed formulation” that gave schools time to implement the law. “That judgment reflects the best of the institutional commitments of the office,” Verrilli said. Important legislation followed: the 1964 Civil Rights Act, the Voting Rights Act of 1965, and the Fair Housing Act of 1968.

Coming to the four cases from June, Verrilli said that Shelby County v. The United States “was the most straightforward.” The Solicitor General’s Office defended the Voting Rights Act’s pre-clearance requirement “using the best arguments available,” but in the end the court ruled that it could no longer be justified. The United States participated as amicus in Fisher v. The University of Texas, writing a brief that “conveyed a better understanding of what was at stake in university admissions decisions to foster success for people of all races.”

Likewise, in The United States v. Windsor and Perry v. Hollingsworth, the United States “respected the institutional commitments of the office and took appropriate consideration of historic contingency as it weighed the significance of the future of a decision to act or not to act.” The Supreme Court struck down the Defense of Marriage Act and dismissed Perry on lack of standing, thus affirming a district court’s ruling against California’s Proposition 8 banning same-sex marriage.

Concluding his remarks, Verrilli said that grappling with the considerations of institutional responsibilities and historical context makes the job both challenging and rewarding.

“There’s never a ‘right’ answer, and that’s part of what makes it such a fascinating experience,” he said.

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By Timothy J. Fox