The Solicitor General of the United States has a unique relationship with the Supreme Court. Unlike other lawyers, the solicitor general routinely makes unproven claims about what the government knows and how the government is constrained, and the court typically trusts these claims.
This relationship of trust grew over many decades, and it is the product of the rigorous process the solicitor general’s office uses to vet such claims with the relevant agencies to ensure that they are telling the truth. Simply put, the Supreme Court trusts the solicitor general’s office because that office spend a very long time demonstrating its credibility.
Even before the Trump administration actively deceived the Supreme Court in Department of Commerce v. New York, the closely watched census case, current Solicitor General Noel Francisco strained his special relationship with the justices to the point where it was starting to fray.
In a 2018 argument, a frustrated Justice Sonia Sotomayor asked Francisco, “How many times this term already have you flipped positions from prior administrations?” It is normal for a new administration to change positions in a few high-profile cases, but this administration abandoned views that the Justice Department held for many years. Often, it did so in ways that undercut the institutional interests of the United States, while benefiting the Republican Party.
The answer to Sotomayor’s question, according to Georgetown law professor Marty Lederman, is at least a dozen times.
Which brings us back to the census case, and then will take us to a document Francisco filed on Friday asking the Supreme Court to stay a lower court decision blocking some of the construction on Trump’s border wall.
The holding of New York is that the Trump administration cannot immediately add a question to the main census form asking about citizenship — a question they almost certainly wanted to ask because it would depress participation in immigrant communities and shift political power to white Republicans — because the administration lied about its real reasons for wanting to ask this question.
The administration claimed, in the Supreme Court and elsewhere, that they wanted to add this question because it would aid their efforts to enforce the Voting Rights Act. Few people believed them, and one of the people who didn’t believe them was Chief Justice John Roberts, who wrote that this rationale “seems to have been contrived.”
After the Trump administration lost the census case, it spent the better part of two weeks playing fast and loose with the facts again. While the census case was pending, the Justice Department told various federal courts at least a dozen times that “the census forms must be finalized for printing by the end of June 2019.”
Yet, for days after that deadline passed, Justice Department attorneys signaled to federal courts that they would continue to fight to include a citizenship question — though Trump himself eventually backed down in a press event on Friday.
The solicitor general’s latest filing involves a case known as Trump v. Sierra Club. In that case, a federal district court blocked the administration’s efforts to transfer $2.5 billion from a pool of money intended to support anti-drug activities to construction of Trump’s border wall.
Among other things, Judge Haywood Gilliam explained in his opinion, federal law only permits such a transfer of funds to address “unforeseen military requirements.” But there’s nothing “unforeseen” about the supposed border emergency justifying a border wall. Trump’s talked about the need for a wall for years.
In any event, Francisco asks the Supreme Court to stay this decision, offering several reasons why the administration thinks that Gilliam misread the statute, and also arguing that the Sierra Club and its co-plaintiffs are not “proper plaintiffs” to challenge this transfer of funds. Francisco also urges the Supreme Court to move quickly, claiming there is a looming deadline that the administration must meet.
“According to [the Department of Defense], under current law the funds at issue ‘will no longer remain available for obligation after the fiscal year ends on September 30, 2019,'” Francisco writes. The Defense Department also claims that it needs plenty of lead time to start construction because the “contracting process necessary to completely obligate the full value of the contracts” is “complex.”
As Lederman noted on Twitter, it’s probably significant that Francisco couches these assertions in language such as “according to DoD.” Having been caught once asserting that a deadline exists that the administration later disavowed, Francisco likely wants to, in Lederman’s words, give himself some “wiggle room.”
Even so, this is still a statement by one of the government’s top lawyers regarding the official position of the administration. And it’s doubtful why any reasonable judge would believe him. It may in fact be true that the Defense Department needs months of lead time to green-light construction before September 30. Or it may not. But the word of this administration means approximately nothing after the census case.
Of course, this Supreme Court is still dominated by Republicans, so it remains fairly likely that they will rule in favor of Trump on the schedule Francisco demanded in the Sierra Club case.
But someday, potentially someday fairly soon, Donald Trump will no longer be president and Noel Francisco will no longer be solicitor general. Nevertheless the cloud of partisanship Francisco raised over his office will remain. The Supreme Court now knows that the solicitor general’s office can be captured by partisans who are not reliable custodians of the special relationship that office built with the justices over many decades.
It cannot unlearn that fact.