Advisory Opinions - The Tenth Justice

Episode Date: May 6, 2021

The Supreme Court wrapped up oral arguments for the term on Monday, so our hosts brought in an exciting guest to keep the legal nerdery barreling full steam ahead for our listeners. On Thursday’s episode, Sarah is joined by Jonathan Ellis, an assistant to the solicitor general of the United States. Tune in to hear Jonathan chat about what it’s like representing the U.S. government in front of the Supreme Court, how many cases he argues per term, how the solicitor general goes about assigning cases, briefs, and arguments to assistants, and more! Plus, Sarah shares a funny anecdote involving Supreme Court Justice Brett Kavanaugh, a trashcan, and Matt Damon. Show Notes: -Sarah’s piece in Politico on serial clerkships Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to Advisory Opinions. I am not David French, but I am Sarah Isger. So this morning, David's wife got a flat tire. No big deal, right? She has her spare. But it turns out last week, she had gotten a flat tire as well. So no spare this time around. And David, as well. So no spare this time around. And David, who is a better husband than probably all of you listening, went out to wait with his wife for the tow truck to come. And he missed our podcast today, the whole thing. The good news was that I didn't need David today because we were talking to Jonathan Ellis, who works in the Solicitor General's office. He's an assistant Solicitor General. He argues cases before the Supreme Court. He was back there when I worked at the Department of Justice. He's an awesome guy. And I was so pumped that he agreed to come on the

podcast and just explain a little bit about the 10th Justice and what their office does. So it'll be a really fun conversation. You won't even miss David, except we don't talk about Dune. We don't have any references to Lord of the Rings. The sword doesn't come up. All right. I miss David a little. He'll be back. All right. We're going to welcome to the podcast, Jonathan Ellis. Jonathan, I am so thrilled about this. Let me give your little mini bio, according to Sarah. So you worked as a computer programmer between undergrad and law school, which is really interesting, an unusual background for a lawyer, actually, although my co-clerk was also a computer programmer. So maybe not as unusual as I think it is anymore.

You went to law school at Penn. Then after law school, you clerked on the DC Circuit for Ray Randolph, a very popular and influential, well-respected judge. You then worked as a Bristow Fellow. And we're going to talk about Bristow Fellowships. That's in the office of the Solicitor General. And then you went on to some other job clerking for some guy named John Roberts, who people on this podcast may or may not have heard of. After that, you worked in private practice for four years. And now you are back in the Solicitor General's office as a real deal.

Like you argue cases, you wear the morning coat. You are an Assistant Solicitor General. Assistant to the solicitor general? Did they hand you those mugs when you arrived? Yeah, yeah. One of the great, great parts about the job. Welcome to the podcast. I really appreciate you being here.

We talked about the timing for this and decided it made sense to go right after the Supreme Court stopped hearing oral arguments. And their last day of arguments was Monday for the whole term. So that means, you know, you're on summer break, right? Yeah. In retrospect, probably should have kicked that out a couple more weeks. Not so much. No, we can, I don't know if you want to talk about, we can go into what's the cutoff is what's, it's what's looming now. So there's still plenty of work to be done in the office. Well, I mean, the justices are pretty famous, at least pre-pandemic, you know, Justice Gorsuch teaches in Italy and Padua pretty often. They, you know, are taking European trips, often teaching. But that might be the

privilege of being a justice and not so much an assistant to the Solicitor General. That is correct. That is correct. The summer will slow down a little, but it's not yet. So the Supreme Court does, unlike, for instance, the Fifth Circuit where I clerked, it does have, though, a seasons to it. So what are the seasons of the solicitor general's office? So, you know, as just alluded, I guess we we do work on the court is in session, starting in October every year until the spring. The summer, we're still working on briefs in the Supreme Court as well as other parts of our job, which we can go into at some point. Oh, let's go into it. I want to know, what would you say you do here? So, okay, fair enough. So, you know, the most high profile thing that we do is brief and argue cases

in the Supreme Court. And so the Solicitor General represents the United States and all its agencies, et cetera, before the Supreme Court. That includes cases in which the United States is a party, so a criminal case or a case challenging a regulation or challenging the act of Congress as unconstitutional. But it also includes participating in cases in which we're not a party but we have the federal government has an interest so think about a private dispute that concerns a federal statute that the federal government some agency administers or you know a constitutional case against a state government that turns on the meaning of a constitutional provision that

applies to the federal government too so that that's the biggest, most high profile, and it's a lot of fun part of the job. But, you know, we also work on the cert docket, the cert stage work. You know, the court hears something like 70 cases every year on the merits and argues, but they get about 7,000 cert petitions. A lot of those cases are cases in which the federal government is a party. And so we work on the briefs in opposition to try to prevent the court from hearing those cases in which we won below. We work, we file, we do invitation briefs, which we can talk about where the court will occasionally hear, look at a cert petition

and decide they want to know what the government thinks. So they'll issue a CVSG, it's called, a call for the views of the solicitor in general, and we'll work on those briefs. And then we work, the SG is actually responsible for overseeing the appellate work of the federal government in all the lower courts' appeals too, which means principally that a federal government cannot, with some exceptions for particular agencies, cannot appeal a decision in which they lost in the lower court without, or not appeal, without the SG's authorization. And so we work on trying to tee up those decisions for the SG.

And so we work on trying to tee up those decisions for the SG. And what about the sort of reverse CVSG process? And I'm thinking of the angry cheerleader case, as we call it here, where it's not that the court asked for the views of the solicitor general. It's that the solicitor general has views to offer. Right. So, yeah, so we participate in a lot of cases as amicus. And so when the court grants a case in which we're not a party, basically without fail, we take a look at it to see if it's a case in which the federal government has an interest and wants to participate. And, you know, so what we'll do is someone will take a look at the outset, and then we'll often solicit the views of the divisions in DOJ or the federal agencies that might have an interest in the case and to see if they think that we should, that the federal government should participate.

And if so, what position should it take? We often then meet with the parties. We'll call each of the council for each side and say, hey, we're thinking about participating. Do you want to come in and make a pitch? And they basically invariably do. And so they'll come. And it really turns in usually about 45 minutes to an hour with each side. And it starts off with a presentation, but it very, very quickly turns into a moot court. And so where the deputy mostly is leading the questioning, but you've got representatives from the office, from around DOJ, and often from several federal agencies, you get to just pepper the litigant with questions about their position

in the case and how it's going to affect, or they think it's going to affect the federal government and why the federal government should come in and participate or support one side or the other. So you have three options at that point. One, decline to get involved. Two, submit a brief. Or three, submit a brief and ask for argument time. What differentiates those last two? Well, really the court. It's pretty unusual that we would submit a brief and then not ask for argument time. I think if it's a case in which the federal government feels like it has an interest sufficient to make its file a brief for one side or the other or neither party, which we sometimes do, it's also usually in our interest, almost always in our interest, to ask the court for argument time. And so, you know, we ask for 10 minutes is usually what we ask for in a case like that. And the court almost always says yes, but not always.

Yeah. So, you know, you can go back and look at the stats. The court, we're sort of unique in that respect that, you know, the court often, almost always, grants our request to participate in argument. But not always. I think they denied our request twice this term, which is the first time in a long time, I think they've denied two of them. But they, you know, just every once in a while deny one of our requests, which, you know, throws things a little bit for a loop around here, because we're all trying to, SG's trying to manage everybody's

assignments and arguments and that sort of thing. But obviously, it's the court's prerogative, and we're happy to participate when they let us. So I found that interesting because on the one hand, one of the trends in the Roberts court overall has been more expanded argument time. Set aside the SG part, just like for those big hit parade cases, longer argument time. Then you have COVID, though, where there is no 10-minute argument for the SG's office. You still have to go through all the justices, which means it's 30 minutes minimum at this point, really. So basically, everything is expanded argument time. And I'm

wondering whether we should put a little asterisk next to the two declined arguments as being kind of COVID specific, because they can't just give you 10 minutes and maybe they don't want 45 minutes of Jonathan time. I'm sure that they do not. So, you know, I haven't thought about that before. It's true that all of the COVID, almost all of the COVID arguments have been longer. Oh, almost all the code arguments have been longer, and I don't think anybody has been kept to 10 minutes during the pandemic or during the telephonic arguments. So maybe that's related.

My guess is it's not. My guess is they just looked at the case and decided it was one in which the federal government's interest was not as strong as we thought it was, or maybe they thought we couldn't bring as much unique information to bear. They obviously don't explain these decisions, but maybe it's related to not wanting to hear. It wouldn't have been me, so the joke's on them. They would have got one of my more competent colleagues. Well, speaking of which, how do you get assigned specific cases?

How do you prepare for oral argument? And how many cases a term does an assistant SG expect to argue? Yeah, so the assignments are handled. Ultimately, the SG is responsible for assigning cases, briefs, and arguments, although she works pretty closely with the deputies in figuring that out. So each of the deputies in our office has a sort of substantive docket. And so we've got Eric Fagan is the criminal deputy. He does basically almost all of the criminal cases that come before the court, as well

as supervising the criminal appeals in the lower courts. And he's relatively new to that position. There had been a criminal deputy for a long, long time. And so, Eric, I mean, people stay in these jobs. Yeah, yeah, they do. It's a good gig. I mean, it's a hard gig. The deputies in our office work amazingly hard, but it's a good gig. It's fun work and it's important work. And yeah, they stay in the role for a really long time. All right. So you've got Eric, our new criminal deputy. Yep. And you want me to run through the deputies? Yeah. Yeah. Okay. So Ed Needler, I think he's the longest serving deputy. I'm sure actually I'm certain of it. In history.

Like just. I don't know. No, no, right now. Right now. I don't know. I'm not doing history, although he served for a really long time. Yeah. I mean, if you've like, my husband was a Bristow, Needler was there. I mean, there's, there's no,

I don't know that history, written history goes back before the time of Needler. Yeah. He, he, he recently celebrated his 40th anniversary at DOJ. He is amazing institutional knowledge. You know, he'll just, you'll be chatting about a case and he'll say, oh, I think we made this

argument in this brief in 1981. I can't remember the name of the case, but it's, it's, you know, he'll say, you're not, don't ask me why I know this, but I'm, I think it's in 482 US, a decision by O'Connor. Look it up. He also looks like a character, like one of the professors from Harry Potter. He has this amazing beard and these little glasses. And like, if you, if I gave you a lineup of humans and said, pick the longest serving deputy SG, I don't think any, it'd be a hundred percent would pick Ed Needler. I think that's right. You get a quill, you might know every time you argue at the court, you know, and Ed has enough to make a new bird. Yeah, he really does. He really does. I think he has the most arguments of any active advocate before the court right now.

It's pretty amazing. So that's Ed. He's got part of the civil docket. Malcolm Stewart has another part of the civil docket. He's been around for some time, although he was an assistant before deputy. So sometimes you pull a brief from the files and it's got Ed as the deputy and Malcolm as the assistant. You're feeling pretty good about what's in there. And then Curtis Gannon is the newest deputy. He came over from OLC. He was an assistant and then he went to OLC and now he's a deputy. He's got actually a portion of the civil docket and a portion of the criminal docket. A little bit of it there doing some shifting around now for that. I'm going to tell a story about Curtis real quick because Curtis falls into that very small group of people.

Like I can only think of one other person right now who falls into this group for me of best humans on the planet. Like if there's a meteor and we only get to save two people, I already have my votes. And Curtis is one of them. Uh, he is, he's a Jones clerk. So he comes from my clerk family and he is just one of the kindest, most thoughtful, generous, um, lovely people. And he's fun. And I mean, he's the geekiest, wonderful person. But here's the fun story. So after Comey is fired, Rod kind of goes into this hole in the deputy's office at DOJ those next few days. And he's in the office till like one or two in the morning. I wait him out and watch him leave most of those nights just to see if he needs anything, wants to tell me what's going on.

He does not. He's a hard pass on that. But there's still a rhythm to what's going on. And then one night, he truly did not leave his office the whole time. I tried waiting him out and couldn't. He just hadn't left. And I was like, I got to go to sleep. This is bonkers. And so I got into work very early the next morning, like probably, um, you know, seven, seven 30. And I called up to Curtis's office and I said, um, Curtis, I need to know every way that you can appoint a special counsel under the regs, I need to be able to explain it to reporters. And because we don't know how this is going to get done, we just got to prepare as many ways as possible. I'm coming up in 30 minutes. And like, God bless Curtis. He sat there with all

the books opened and tabbed and like what he's able to do in 30 minutes is a little shocking. And so by the time Rod actually told anyone that we were appointing a special counsel, we were already incredibly well prepared to explain the regulations, the DOJ regulations under which it was done. And the only way that happens is by having someone like Curtis, who doesn't blink, doesn't ask questions and already knows exactly where to look and like pulls that book off of his shelf. So I was so thrilled when he moved over to the solicitor general's office. He isn't, he's an asset to anyone in any team. So yeah,

it's true. Yeah. Yeah. And so in that respect, he fits in very well with all the rest of the deputies who are just amazing, amazing lawyers. And, you know, it is a benefit to the United States that they are there and that they stick around for so long. And then I guess, so the last deputy, just to round it out right now, is Elizabeth Rielager, who is the principal deputy and acting Solicitor General, the most recent addition to the office. But she was an assistant before, actually. She was an assistant when I started, so also a return to the office. It's been good to have her back. Yeah, we don't have

a nomination for Solicitor General yet. No, we don't. No. Some eager folks around my office wanted to find out who that might be. It's you. Congrats. If someone's taking money on that bet, let me in. All right. So they're assigning the cases, but are you basically a grab bag? You could get criminal or civil. How do the assistants get lined up? So unlike the deputies, we don't have formal dockets anyways. We are all generalists.

And so we just get whatever comes our way. And so what that means is it's signed largely by, at least the cases, the briefs are assigned largely by availability. Although you do sort of over time develop sort of baby dockets. And so, you know, you do a case about, done a bunch of cases about the patent trial and appellate board. And I've done- Because you were a computer guy. No, I think one just landed on my desk one day and, um, and so I keep doing them. Um, God, who has the FERC baby docket? Ew. Uh, yeah, I don't, I don't know. Actually. I actually just, I just finished working on a

FERC case, but, uh, maybe case, but maybe I'm developing one. Ooh, I have a piece of the DeRissa docket. Actually, I like it. It's kind of, it's fun. I like DeRissa. I didn't like it before, but now that I've done it, once you like dig in to a case, you know, and you get all wrapped around it, it can all be fun. That's why I'm an appellate lawyer.

I don't have to do basically anything. And I find most hard legal questions fun once you dig in. That's sort of the thesis of this whole podcast, I guess, is like once you dig in, there is nerdery and joy to be found. OK, so how many cases do you argue a term? So there's a pretty strong tradition that your first term in the office as an assistant, you get one argument and only one argument. And then after that, they're assigned, the arguments are assigned by seniority,

like most things in the office. And so what that means in practice is that most non-first year assistants get two every year, and then a handful typically get three. This year's a little bit strange because they had to move a bunch of arguments over from the spring that they got canceled in April or March and April. And so the numbers are pretty low this year, but that's generally what you can expect. And then the SG and deputies

tend to do one per sitting, correct? No, not one per sitting. The deputies tend to do four. Sorry, I didn't mean per term. I meant like per like oral argument sitting. Right. So yeah, but so the deputies only do four. So there's, there are more than four sittings. They typically do about. Got it. Got it. The SG will often do one sitting, but, but not always. And, you know, it's kind of, some of it depends on, there are cases that are sort of SG cases. When the Obamacare case comes up, you know,

or one of the biggies that's got to be on the front of the New York Times, you know, you go, well, that's an SG. And there are cases that are deputy arguments. And then there are cases that are like, obviously assistant arguments. As we mentioned, FERC, ERISA, copyright, patent. The sexy cases. Although Google the Oracle, that was a Malcolm argument that is a biggie. That was a biggie. Okay. So it is very famous that the solicitor general, I mean,

speaking of traditions, right? Like there's a closet full of kind of gross morning suits. Like there, how to describe it. If you have not been to a wedding where the bride and groom insisted on this sort of thing, this is tails.

They are gray pinstriped tails. And the pants are kind of weird, actually, frankly, in my opinion. The suit coats I can kind of get on board with. The pants are very strange to me. Yeah, it's a ridiculous-looking outfit. I mean, it's great. I like to do it. I love the tradition. There's really something special about getting to put it on and standing in front of the Supreme Court when you stand in representing the United States. But the outfit is sort of ridiculous.

sorry. After my first argument, I, I, um, I was stood on the, on the steps, uh, of the court, uh, with my wife, you know, and took a picture and my wife posted it on Facebook. And then she had to like very quickly write in the comments that, no, that's not the outfit Jonathan chose as the one he thought he should wear, uh, when he argued before the Supreme Court. That represents his personality. First of all, so I know, for instance, Rod Rosenstein sort of famously argued a case as the AG or Deputy AG sometimes sort of use their prerogative to argue one of the lesser SCOTUS cases during their tenure. So Rod Rosenstein did argue a case

and they found him a morning suit that fit. But when you are actually an assistant SG and you're going to do this on the regular, do you use one of the stock morning suits or did you get a bespoke morning suit? Neither. It turns out that Charles Twitt, I think is how you say that place. I don't know if I'm, I didn't put a plug in except that that's the only place I know around here where you can buy off the rack morning coat. So I think all of the newest assistants that have joined, at least since I joined,

almost all of them bought their morning coat from Charles Tewitt. And during COVID, we can't see you. The justices can't see you. This is all telephonic and you're still wearing it. Yes, we are. You get that that's crazy, right? Yes. Yes, I do. But that's it. When the court announced that they were going to do telephonic arguments, it was a question, but it was resolved. As Chief Francisco said on a note and said, we are going to continue wearing our morning suits for the for the arguments.

And and we have and we continue to do so. That's just because Noel, so Noel Francisco the uh confirmed solicitor general through the trump administration and he left um right after that i would assume like right after that decision basically yeah as is tradition yeah so the usually the solicitor general leaves at the conclusion of the last full supreme court term of that presidential term um give or take and lets their principal deputy as acting solicitor general for then the next fall through the election, which is what happened here. Knoll looks like he was born in a morning coat to me. I thought just the look of Knoll really,

I mean, he should have been born in the 19th century. It would have like the, all of it. I was very for it. Um, but that's not how he dresses at all. The rest of the time, he was sort of famous for having like a bulky sweater and a cigar out on a bench, reading briefs in the dead of winter. Sometimes he would take his convertible over to the mall, have the top down with the heat on and smoke his cigar and read his briefs over there. It was like a thing that I would tell the law clerks or interns that if you wander around the building, occasionally you'll just bump into the solicitor general. So you never know and always be polite, especially if that person is stacked with papers and briefs. Can I tell an embarrassing story about Noel?

It's embarrassing to me, not Noel, about his penchant for reading briefs in his convertible. So I would sometimes go over to the mall, it's just across the street from Main Justice, as you know, and run around the mall, just because I like to run. So I did that one day when we were back in the office, and I ran all around, up around the Capitol and around the Washington Monument and around the Lincoln Memorial, like a five-hour

run. And I got done, and I got back to the office, and I realized that I had the key to my car in my back pocket, and there was a hole in my back pocket, and the key to my car was no longer in my back pocket. So that was a sad discovery. And I went back to – I just finished a just finished a five mile run. I like, I'm pretty tired. I went back to the mall to sort of retrace my steps to see if I could find the

key to my car. And then for the only time in my life, well, first of all, I got back there. And as I get back to the mall, it begins to pour down. Perfect. So now I'm walking around the mall looking for my key in the pouring rain. And I pass one of those ridiculous scooters. And I think to myself, I am super tired and it is raining and I need to find this key. And so the only time in my life I rented one of these scooters. I put on my Uber app and I get the scooter. And so now I'm scooting around the mall in running clothes, soaking, sopping wet, looking for my key. And I can't find it.

And I look over and who do I see sitting in their car? Convertible top up. But my boss, Noel Francisco, preparing for argument. And I just, what do you do do right i just it just waved and scooted off i'm crying that's that would happen to me it's so perfect um and you never found the key i did not no wow that. Wow. That is, that is awful. Uh, DOJ, by the way, has an interior courtyard that is beautiful. It's like the thing I probably miss most about DOJ. Cause I would spend all my afternoons out there, no matter the heat temperature, uh, reading my

stuff. Uh, it's also a good way to see the comings and goings of people who use motorcades, by the way. Uh, the FBI director comes in through the comings and goings of people who use motorcades, by the way. The FBI director comes in through the courtyard, the DAG, the AG, any cabinet official. So, you know, you sort of pick up some information as well. But we're across the street from what I call the spider garden, but what is actually called the sculpture garden. I call it the spider garden because my favorite one there is the giant spider sculpture. So that's also a popular DOJ place where you could occasionally see people walking or having their little walk and talk meetings. There's a gym in the Department of Justice where people run who don't want to lose their keys, but it's in the basement and it's really, really depressing. I do use the gym. I used to use the

gym, uh, but, but, uh, only for like, you know, the, the locker rooms much, much prefer to run outside, uh, with the unfortunate side of the fact that you can use your key in the mall. All right. Before we leave the morning coats, women wear the morning suit as well. Uh, it's up to the it's up to the the the advocate uh in fact nobody in the office none of the women in the office right now wear uh wear a morning coat um sg uh kagan did i think um she was very famous for doing that um and but uh and i think a few of the assistants i'm not not i know i know a few of the female assistants have since gotten sort of custom morning suits. You can't buy those off the rack from Charles DeWitt.

And so at the moment, I think none of the females in the office wear morning coats. Just another example of discrimination in the legal practice that you can't buy off the rack morning coats from a place called Charles DeWitt? Very narrow discrimination. Do you know when the tradition started? I don't know. I probably should. I mean, it's interesting only because the Department of Justice, as we know it now, didn't really exist in the 19th century. And so it's not actually like this carry on from like, oh, the Civil War times. Like it's almost certainly not. The position of the Solicitor General is, you know, relatively new in the scope of human history, but like even in the scope of American government, it's relatively new. So that's sort of that's that's interesting.

It does remind me of the, you know, one of the great 30 rock lines where it's after, you know, Liz Lemon walks in after work and Alec Baldwin is wearing a tux. And she's like, why are you wearing a tux? And he goes, it's after six lemon. I'm not a farmer. So maybe that's what's going on. Y'all just want to keep it, keep it fancy. I mean, it's a, it's a formal kind of office. It is a formal office for sure. I would argue that the office of the solicitor general is more beautiful than the office of the attorney general or deputy attorney general. I have not spent as much time in the, in those

two offices, other offices. Although I think the Office of the Assistant General right now used to be the office of the AG. I might be wrong about that, but I think it was at one time. So maybe that explains. Gosh, all these offices have moved. Now the Office of the Assistant Attorney General for Civil Rights used to be the office of the FBI director. That's a big deal. And when they shoot movies and stuff, everyone wants to come see that office, which by the way, oddly, my office handles those things, my former office, the Office of Public

Affairs. We don't get many movie requests, but when we do, boy, am I there for it. but when we do, boy, am I there for it. Back to business. So the Department of Justice is this odd hybrid between political appointees and civil servants. Throughout the government, that's true, but most other departments are policymaking. But the Department of Justice has a policy role, but it also has this very non-political role. And there are political SG positions and the well, the solicitor general and the principal deputy solicitor general. And then there are civil solicitor general positions, which you are your career. And the Solicitor General is known as the 10th Justice. The sort of point being there are nine justices to Supreme Court, they're all a really big deal, and then there's a 10th Justice. And it's the Solicitor General because that person is so trusted and involved in the Supreme Court's docket. I guess I'm just sort of curious how you think the Solicitor General's office maintains credibility through political appointees, through administrations. It's always sort of the 10th Justice, the Solicitor General's office,

regardless of who's occupying it. Yeah. So, I mean, first off, we don't use that term, the 10th Justice, and I'm not familiar with it, but it's not as if anybody in the office, including the SG herself, is thinking of herself as the 10th Justice. No, you have the mug that says Assistant to the Solicitor General, and she has the mug that says 10th Justice. That's correct. um so but you know you're we've already talked about the amicus participation in the court often lets us participate amicus and calls for the abuses of the sister general although there are sort of unique perks um you know there's the office the solicitor general actually has an office in the court um which is nice so we can go and um and hang out during argument if we're not going to be in the courtroom they pipe the audio in we can go and hang out during argument if we're not going to be in the courtroom.

They pipe the audio in. We can go there before argument, that sort of thing. And then the court just recognizes that every new SG is introduced to the court. If you look through the pages of the U.S. report, you'll see at the beginning when the new SG is appointed and confirmed. So, you know, to your question, though, you know, how does the court or the office maintain credibility? I think, you know, in part it is because there's some level of deference given to our office because, you know, in the same court and branch of the same government. And so it's not, you know, sort of unusual for the court to look to the representative of the executive branch and

give some deference and respect to that person and that person's office. But I think beyond that, I think what we do, what we try to do is play it straight with the court. And we do have two political appointees, as you point out, but only two of the office. And although the views of the federal government before the court change in some cases, some set of cases between administrations, it's not as many as you think. You know, sort of like the public perception of the Supreme Court is that all their decisions are 5-4 and they're these big monster divisive things. And that's not the truth. And it's similar for the federal government. The position of the federal government in most cases, it doesn't change drastically, if at all, between

administrations. And then regardless of, you know, sort of what our bottom line is, the briefs that we write, we try to be as sort of honest and accurate as we can. And so our briefs have gray covers and like, you know, all the other briefs that get filed with the courts have these like color-coded rules for the color and the federal government just gets to file and does file all its brief with gray uh covers and and that sort of sort of reflects the inside of the brief too um is that we're just here with a straight man uh and so if you want to hear and read a straight unbiased accounting of the facts of a case, pick up the great brief. That's sort of our goal. And really, I can say when I was clerking, I knew that if I wanted to get it

here, see what the law was, see what the facts were, I could pick up the great brief. And we work really hard to protect that reputation with the court, even though, obviously, we have a view, obviously we're advocating for a particular position. We try to do that in a way that sort of lays, puts our cards on the table for the court. I love, I never thought of the gray color as a metaphor and I really, really like it. And I will now talk about that constantly and not give you any credit. Great. I'm sure I stole it from somebody else. All right. So when you think of the social scene in DC, the most coveted tickets for politicos in

the city are at the White House. It's the Easter egg roll. It's the 4th of July and watching the fireworks from the lawn of the White House. But if you're a lawyer, the most coveted ticket all year round is the Christmas party at the Solicitor General's office. There aren't really decorations exactly, and it's mostly hanging out in the big marble hallways that, you know, are there all the time anyway. But it's a bit of a who's who of DC appellate world. To tell my embarrassing story, Justice Kavanaugh was there after he had been confirmed and all of the reporters wanted to meet him. And so I was doing a little intro to Justice Kavanaugh

and I was standing, sort of leaning, whatever, against one of the trash cans. And it's not like one of those like party trash cans. It's like a tin rounded top flippy door trash can. Um, and in doing that, you know, in doing so, um, while leaning and trying to act really nonchalant, like I just, of course, talk to justices all the time to impress my reporters because, you know, them thinking I have access to everyone in the universe is good for me and makes them not try to go get leaks in the department. Anyway, leaning against there, I dropped, I was holding a phone number and I dropped instead my phone, the phone

number and the napkin that I had actually tried to throw away all in the trash can. So while facing justice Kavanaugh, trying to make conversation, which also, well, I'm trying to dig through the trash can to get my phone back out. And so I'm not paying attention to what I'm saying and then, and say, basically ask whether he thought that Matt Damon was good-looking enough to play him on Saturday Night Live. It was so—I was so awkward. It was so awkward, Jonathan. It was really bad. But it raises an important question.

You guys live a fairly cloistered life in some respects, but nothing compared to the Supreme Court justices. How often are you socializing with, you know, clerks of the court or Supreme Court justices? Or is the Christmas party a true one-off? It's mostly a one-off. Yeah. Yeah. I mean, it's, we, most of interaction with the justices are, is at the lectern. We do occasionally run into them at the Christmas party, although to be, you know, to be fair, they are not there to see us. And so I will occasionally say hello to the justices that I know, but that's about it. And then there's the clerk reunion. So, you know, you mentioned at the top that I clerked for the chief justice.

And so we, pre-COVID, we were having, we had annual reunions and get to go and catch up with the chief at those and with our fellow clerks. But that's about it. It's not like we're hanging out at the court with the justices or the clerks or at their home on the weekends. Where are the chiefs' clerk reunions? They're at the court. So we go and they usually have both of the East and West conference rooms, not the conference room where the justices meet, but the more places where they host gatherings at the court. We get to have a sit-down dinner, and the clerks from that year have to put on a skit, which is amusing to the rest of us and terrifying to them.

And then we get to catch up with friends and spend a few minutes. The chief is always really good to walk around each of the tables and sit down and catch up with folks there. So it's a good time. There's a lot of skidding at the Supreme Court. So you'll have, it's sort of famous, there's like a Thursday happy hour that, you know, chambers will trade off hosting. That's like sort of the main sort of regular socialization. But then at the end of the term, there is a skit. And then like, I'm just finding out about this, you know, traditional chief skit. Like, so those poor clerks have to do like two skits a year. They do. Yeah. Yeah. And the happy hours, I don't know. So there's the actual happy hour. But then if your chambers is in charge of the happy hour of the week, you also have to do the invitation, which itself can kind of turn into a skit.

the skits or the invitations that we did while I was there. Suffice to say, after one of them, Justice Kagan dropped by my office, just kind of stuck her head in and said, saw your invitation, keep your day job. Which I took to be a compliment because my day job was writing pool notes for her. So that seemed like, you know. Yeah, I mean, you could have been a really good invitation. And what she was saying was, you were so good at this, but you're exceptional. You're the best who's ever written a pool memo, maybe. Yeah, it's possible.

That's what I'm going to go to my grade of thinking. Yeah, yeah. In sort of a textualist analysis, I think both are equally plausible, just on the text at least. Which is how Justin Kagan would have me. That's right. All right. Last question. Did you, so I published a piece about serial clerks. Did you happen to see my thesis in this?

I have to say that I saw that you published a piece about serial clerks, but I have not dug in. Let me give you the CliffsNotes here. Basically, 1995, OT95, was the last time anyone clerked on the court without a previous clerkship under their belt. Since then, you've always had at least one clerkship. It's almost always a circuit court clerkship. There have been, I think, two exceptions where someone came from a state Supreme Court. But what has happened, if you look at like, you know, OT 95 to, uh, OT 06, um, you know, some people have multiple clerkships. It's pretty rare. If you look at what's happened just in OT 16 to now, there have been more multi-clerks, serial clerks heading to the court than from 95 to 2016 combined. It's crazy. And so my thesis was that, first of all, by doing so, you're limiting the number of

people who have federal clerkships. That's not an expanding pie. The pie is only so big. And so if someone's taking two of them, and a lot of people are taking two of them, then all of a sudden you have fewer people having that opportunity. And by doing so, you are further pushing into the likelihood that they're going to come from elite schools, wealthy backgrounds, if they can afford to clerk for that long and move around the country. And most importantly, to my point, it's much harder for women who have to consider, you know, you graduate law school at 25. It's sort of the beginning of your childbearing years. And you've got to think about partnership track and

everything else. So I ask all of, I tell you all of that, not to ask about serial clerking. I'm not going to, you know, ask for your opinion on that, but I get a lot of phone calls from people asking whether clerking is worth it. You clerked at the DC Circuit. You clerked at the Supreme Court. You had a Bristow Fellowship, which I hope you'll talk about a little as sort of a quasi-clerkship. If y'all are the 10th Justice, a Bristow Fellowship is the 10th clerkship as well. Is it worth it? Yeah, definitely. I mean, I think if you want to do litigation, certainly if you want to do appellate work, but I think if you want to do litigation, it's a pretty easy call if you can make it

work financially. Um, you know, it's, you're right that it's not, it's not nothing, uh, to give up if you're, if the alternative is to go, um, work at a law firm, a private law firm, where they pay ridiculous salaries sometimes. Do you know what the starting for a first-year lawyer is right now at the toppy, tippy-top firms? No, I don't. I'm terrified to know how much higher it is than my salary. Yeah. One 90. Yeah. Yeah. Okay. It's okay. It's all right. Uh, and then of course the bonuses from the Supreme court, if you're a Supreme court clerk who goes to a firm, those are at 400 right now.

Yeah. That's gone up a lot fat. I mean, that that's way higher than, uh, I mean, I was paid more than I was worth when I, uh, when I joined Latham, but, uh, that's gone up real fast. Yeah. I think my year, my, my Supreme court clerk year from law school, I think it was two 50 that year. I mean, so that was 10 years ago. It's, it's doubled basically. Yeah. Yeah. Um, so yeah, but I, yeah, I do think it's, it's worth it. I mean, the experience, uh, working for a judge, uh, you know, I've done, I did court of appeals and spring court as you noted, um, and both were amazing experiences. Um, I worked for two really great judges and people. Um, and I learned a ton, uh, while I was there, I learned a lot and people. And I learned a ton while I was there.

I learned a lot about the law. I learned a lot about how judges reach their decisions. And I learned a ton about how to write, which is what I do for a living. So, you know, I do think it was well worth the investment. You recoup a little bit of it. When you go, when you go, if you go to a firm, you get paid a bonus. Um, Supreme court bonuses is very large. Um, but

you also get a bonus. Um, even most firms pay a bonus to any clerk, um, court of appeals or district court. Yes. Although just to be clear, it's $400,000. If you're coming from the Supreme court, it's drum roll $50,000. If you're coming from any other court. Yeah. Yeah. But that's not nothing either. That's a good chunk of change, uh, help pay off your, help pay off your loan. So, I mean, you're not going to make it up. The bonus is, I mean, it's not going to make up the money that you lost if you had just gone into private practice, but I do think it's worth a worthwhile investment. Um, and you also, you know, you create bonds with the judges and you create bonds with the clerks that will follow you for the rest of your career and, uh, are both, you know, just personally, um, uh, fulfilling, but also professionally helpful. Talk about your fellowships at the Supreme,

at the Solicitor General's office. Yeah, so I did the Bristol Fellowship. As you know, that's a one-year fellowship. For recent law grads, it's usually folks who have just come off of a court of appeals clerkship. We have five of those in the office, and they work with us on all the things that I mentioned that we do. So they help research mostly and help us prepare for oral argument. Occasionally, if we can carve off a section of a brief to have a Bristol right of a first draft, we'll do that too. But they also work on the appeal authorizations on helping the SG figure out whether to authorize an appeal. And in that process, they play the exact, they don't just, they don't help us. They just play the role of an

assistant in that process that works on briefs and opposition. They get to argue a case in the court of appeals. That was my first argument, which was an amazing experience. And then, you know, they will often go from, from there on to many of them will go on to clerk for the Supreme court, uh, the following year, it's we're pulling from, uh, basically the same pool that the justices are hiring from. Um, so that's a, um, I had a wonderful year doing that. Um, I got to, I got to meet a lot of the folks that I now work with. Eric Fagan was an assistant, uh, when I was a Bristow, Jeff Wall was an assistant. In fact, Jeff Wall was one of the Bristow coordinators when I was a Bristow, uh, Curtis

Gannon, uh, was an assistant. And then, you know, Ed Needler was of course a deputy, um, as was Malcolm Stewart. So, um, that was a great fellowship. And I, uh, I, I would encourage anybody who's thinking about doing appellate work to take a look at that fellowship. We also have, I'll say I didn't do this fellowship, but I wish I had. I didn't know it existed. So I'll plug it here. A summer fellowship, a summer internship for a very recent law grad. for a very recent law grad. So just after you graduate from law school, you're going on to clerk for a court of appeals judge. Usually you start in the fall.

And so for that little, the summer in between, we have something called the Phillips Fellowship. Bristow was the first SG. Phillips was the second SG. And so those folks come in and they actually do very much similar things that the Bristows do and so those folks come in and they actually do very much, uh, similar, uh, things that the Bristos do and so forth and helping us research and prepare, uh, for, uh, writing briefs. And there are no arguments over the summer, obviously, but, um, but they come, they'll go to party

meetings that we talked about in where the office is deciding where to, whether to come into a case or what position to take, um, and, uh, and sort of just get involved in the office that way. And it's a great I think it's like it's like an eight week fellowship or so to get a taste of the office. Fun fact, Benjamin Helm Bristow is his full name. He was the first solicitor general. The position was established by Ulysses S. Grant. And then he became secretary of the treasury under Grant after that, which is like a, we don't really think of the solicitor general now as a stepping stone treasury secretary. But that's fun fact. Also, I will note, it's a little hard to tell in his official portrait

here, whether he is wearing a morning coat. I kind of think he's not, I think he's just wearing a double-breasted coat. And it's definitely not, doesn't look think he's just wearing a double breasted coat. Um, and it's definitely not, doesn't look like the, you know, pinstripey one that y'all have. So I don't think this is it. I don't think this is the origin. Uh, but if you looked at the portraits, I don't think the SGs were, were, uh, their morning coats in their portraits. You can go to that one page on the DOJ website where you can go through almost all the portraits. Um, I don't think they're wearing them. So that might not be dispositive. That's frustrating in its own way. You know, like, why are you not wearing it? That's silly. Because it looks ridiculous.

I demand the morning coat. If you're going to do this and wear it to arguments, by God, wouldn't it be so much cooler looking if that hallway that lines the outside of the SG's corridor and has all of the portraits of the SG, if everyone were wearing the exact same thing and all that changes over time are the hair and facial hair, you know, fashions? It'd be very cool. It'd be cool. Although it's kind of fun to see the collars and various things on those people who are wearing those portraits are interesting in their own ways. All right. With that, Jonathan Ellis, thank you so much.

This is a treat to, you know, pull back the curtain on the Solicitor General's office with an assistant to the Solicitor General. I mean, thrilling. Well, this is fun. Thanks very much for having me General. I mean, thrilling. Well, this has been fun. Thanks very much for having me on. I really appreciate it. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep

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