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69 A.B.A. J. 734 (1983)
The Solicitor General's Winning Ways

handle is hein.journals/abaj69 and id is 734 raw text is: By John A. Jenkins REX E. LEE, solicitor general of the United States, stood gamely in the well of the Supreme Court last November 30 as Justice Harry A. Blackmun glowered at him. Lee was there as amicus curiae in a series of abortion cases to tell the Court that it should give state and local legis- latures greater deference. He was telling the Court that it should let states and lo- calities set their own abortion standards. Justice Blackmun, author and guard- ian of the Court's landmark decision in Roe v. Wade, 410 U.S. 113, legalizing abortion ten years ago, had grown per- turbed listening to Lee. He testily asked whether the government was seeking to overturn Roe. Not yet, Lee replied evenly. Blackmun then shook the gov- ernment's brief for dramatic effect. It seems to me you are asking that, he said, or you are asking that we over- rule Marbury v. Madison. Later in his chambers, the justice paced and fretted over his exchange with Lee. Blackmun prided himself on his gentlemanly conduct on the bench. Other justices might overuse the power of the black robe, as Blackmun put it, but he tried never to do that. Yet Lee, the Reagan administration's front man, had phrased up an antiabortion argument that Blackmun felt had been an affront to the Court. That justified his response. I guess I don't regret it at all. Nine blocks away in his fifth-floor of- fice at the Justice Department, Rex Edwin Lee had no regrets either. It had been Lee's idea to enter the controver- The solicitor general has the winningest little law firm in Washington, D.C. They win two out of three cases they argue before the Supreme Court. 734 American liar Aqqrintinn lnnni sial abortion cases. He had first cleared his plans with Attorney General William French Smith. I wanted to give the attorney general a chance to wave me off, Lee recalled. We had some discussions about it. And, ultimately, he came back and told me to go ahead and do it if I felt that strongly about it. Smith, for his part, had gone so far as to double-check Lee's stance with Presi- dent Reagan, an avowed antiabortionist who had pledged in his campaign to seek a constitutional amendment overturning the Supreme Court's ruling in Roe. Lee, though, saw this as more than just another political issue. He ada- mantly believes the courts should defer to the will of popularly elected legisla- tures on sensitive social issues like abor- tion, and he saw the cases as useful vehi- cles for carrying that viewpoint to the High Court. This was Lee's opportunity to frame the issue for the Court, and he seized it. In the Supreme Court, Rex Lee is the point man for the home team. The solic- itor general serves as the government's chief advocate in the Supreme Court. and therein lies his outsized importance. He will participate in three fourths of the cases before the Court this term. As a result, some believe that being named to the post is something akin to becoming the Court's tenth justice. Yet as Lee has begun to learn in his two years in office, the job also can be a mix of incongruous roles. As the government's chief counsel, the solicitor general alone decides whether cases lost by the government at the trial or appellate court level will be appealed, and the office represents every government agency or department (ex- cept for a few independent regulatory agencies) before the Supreme Court. By tightly controlling the flow of cases to the Court, the solicitor general indirectly be- comes a valued ally of the justices in their quest to control the Court's bur- geoning caseload. Only one in six government losses is appealed to the Supreme Court. The idea always has been for the solicitor general to bring only the most important gov- ernment cases to the court for resolution -to become, in the words of the Yale Law Journal, an advocate whom the Court can trust -and the concept seems to work. In each term approximately 80 per cent of the solicitor general's petitions for writs of certiorari are granted (45 of 57 were granted in the 1981 term), com- pared to a minuscule percentage for all other petitioners. More often than not the government prevails in the Supreme Court - winning on an average two of every three cases the solicitor general briefs or argues before it. It's a success rate that any law firm would envy. Most sophisticated The solicitor general's office, with a budget of $3.2 million and a staff of 22 lawyers supported by 32 secretaries and paralegals, carries on what may be the most sophisticated appellate law practice in the world. By carefully selecting cases for Supreme Court review, every solic- itor general plays an important role in shaping the Court's development of the law. More than his predecessors, though, Lee has made strategic use of Photography by Lillian O'Connell The Solicitor General's Winning Ways

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