Saturday, June 8
A Conversation with the
Hon. Donald B. Verrilli, Jr. ’83,
U.S. Solicitor General
Moderator: Prof. Thomas W. Merrill
In a Discussion with Professor Thomas W. Merrill During Reunion 2013, Verrilli Offers Insights on Representing the United States Before the U.S. Supreme Court
“You have to really consult broadly within the government in order to be effective,” Verrilli said about deciding which position the U.S. will take in a case. “There is an amazing amount of expertise out there.”
As Solicitor General of the United States, Donald B. Verrilli, Jr. ’83 often must prepare for legal arguments far more quickly than he did when he was in private practice. But as the government’s top Supreme Court advocate, he has a unique advantage: The entire executive branch stands ready to offer its expertise whenever he needs it.
At a special Reunion 2013 event that featured Verrilli in conversation with Thomas W. Merrill, the Charles Evans Hughes Professor of Law, Verrilli described his decision to bring in reinforcements in advance of this spring’s argument in Association for Molecular Pathology v. Myriad Genetics, Inc., a case that asked whether isolated human genes are patentable. Verrilli phoned the director of the National Institutes of Health, Dr. Francis S. Collins, who happens to be a physician-geneticist known for his leadership of the Human Genome Project.
“I said, ‘Francis, can you assemble a team of Nobel laureates to help give me a tutorial here?’” Verrilli recalled asking. “And a few days later I’ve got Francis Collins and all these amazing people who are the world’s greatest experts sitting around my conference table teaching me as though I’m a college freshman.”
The Supreme Court’s decision in Myriad adopted the position argued by Verrilli—that isolated human genes cannot be patented but that genetic material created in laboratories can.
Verrilli entertained questions from alumni on a wide variety of topics, including his confirmation and the inner workings of the office of Solicitor General.
Reunion 2013 marked the 30th anniversary of Verrilli’s graduation from Columbia Law School. In an hour-long discussion, he answered questions from Merrill, who served as deputy solicitor general from 1987 to 1990, as well as those from fellow alumni and guests on a wide variety of topics, including his confirmation process and the inner-workings of the solicitor general’s office. During introductory remarks, David M. Schizer, Dean and the Lucy G. Moses Professor of Law and the Harvey R. Miller Professor of Law and Economics, described Verrilli as “one of the most outstanding Supreme Court appellate advocates of our generation.”
The former co-chair of Jenner & Block’s Supreme Court practice was nominated by President Obama in 2011 to replace Elena Kagan after she was appointed to the high court. Since becoming the nation’s 46th solicitor general, he has represented the United States in a number of landmark cases. In 2012, Verrilli successfully defended the Affordable Care Act and won a ruling overturning key provisions of an Arizona immigration law. This past fall, he argued for the government in Fisher v. University of Texas, which involved a white student’s challenge to an affirmative action admissions policy, and this spring he argued cases dealing with the Voting Rights Act, California’s Proposition 8 ban on marriages between same-sex couples, and the federal Defense of Marriage Act.
In major litigation, Verrilli said he allows himself more time to prepare, editing briefs over and over again and participating in moot court sessions with the lawyers in his office. But the sheer volume of cases precludes him from doing so in every instance.
Verrilli must sign off on every appeal the United States files in cases it has lost in lower courts—more than 2,000 each year. By the time a case gets to him for review, Verrilli said four different attorneys have written memos offering their opinions on the proper course of action.
Another major component of Verrilli’s job is deciding which position the U.S. will take in a case, a decision that requires input from a multitude of knowledgeable sources.
“You have to really consult broadly within the government in order to be effective,” Verrilli said. “There is an amazing amount of expertise out there.”
In addition to helping the lawyers prepare, such consultation also ensures that everyone feels their opinions have been heard.
“Often somebody very important is going to lose, and they’re going to be told, ‘no, we’re not doing what you want,’” Verrilli explained. “It’s really imperative that the process is one that everyone thought was fair and open.”
As for appearing before the justices, Merrill pointed out that Chief Justice John G. Roberts, Jr. seems to be a bit more flexible during oral arguments than his predecessors, with counsel receiving extra time to answer questions in some situations. Verrilli agreed, saying he appreciated that flexibility and thinks it benefits both the justices and the attorneys who appear in front of them. In answering an audience member’s question, Verrilli also said he thought amicus briefs were “on balance” beneficial to the court for the information and perspective they provide.
Verrilli touched on the high-profile nature of his job as well. In response to another attendee’s question, he weighed in on the criticism he received in the aftermath of his ultimately successful argument in the Affordable Care Act case.
He said “there wasn’t a single suggestion” about his argument that he and his team had not considered. But he didn’t begrudge the critics.
“It’s a good thing to have that kind of vibrant discussion,” he said. “It’s good to have the country as engaged as it was.”
Despite his busy schedule, Verrilli remains involved in the intellectual life of the Law School, where he once served as editor-in-chief of the Columbia Law Review. He spoke at the 2012 graduation ceremony and, earlier this year, received the Law School’s highest honor, the Medal for Excellence, which recognizes exemplary qualities of character, intellect, and social and professional responsibility.