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82 Geo. L.J. 2079 (1993-1994)
Confession of Error in the Supreme Court by the Solicitor General

handle is hein.journals/glj82 and id is 2107 raw text is: Confession of Error in the Supreme Court by the Solicitor General DAVID M. ROSENZWEIG* It's bad enough to have the Supreme Court reverse you, but I will be damned if I will be reversed by some Solicitor General.1 -Learned Hand Solicitor General Drew Days, III created a political uproar shortly after assuming office in 1993. In his brief on the merits in Knox v. United States,2 Days argued to the Supreme Court that the Third Circuit Court of Ap- peals had adopted an overly broad interpretation of a federal child pornog- raphy statute.' Days urged the Court to vacate Stephen Knox's conviction for receiving allegedly pornographic videotapes and remand for reconsidera- tion by the lower court in light of Days's proposed interpretation of the law.4 The Supreme Court agreed.5 Days's confession of error-his contention that the court of appeals had committed legal error by applying an improper standard in affirming Knox's conviction-reversed the position taken in the case by the Bush Administration, which had defended the conviction in the Supreme Court.6 * Judicial clerk to Hon. Cynthia Holcomb Hall, United States Court of Appeals for the Ninth Circuit. J.D., Georgetown University Law Center, 1994; A.B., Harvard College, 1986. I would like to thank Professor Susan Low Bloch for her generous assistance in the research- ing and writing of this note. 1. Quoted in Archibald Cox, The Government in the Supreme Court, 44 CHI. B. REc. 221, 225 (1963). 2. 114 S. Ct. 375(1993). 3. Knox was convicted under 18 U.S.C. § 2252 (1988), which prohibits the transportation, reception, distribution, or possession of visual depictions that involve the use of a minor engaging in sexually explicit conduct. The confession of error concerned the definition in 18 U.S.C. § 2256(2)(E) (1988) of sexually explicit conduct, which includes lascivious exhibi- tion of the genitals or pubic area of any person. The government successfully argued in the district court and court of appeals that this language applied to three videotapes found in Knox's possession, even though the girls in the tapes wore bathing suits, leotards, or underpants, because the tapes nonetheless exhibited the subjects' genital areas. Brief for the United States at 3-8, Knox v. United States, 114 S. Ct. 375 (1993) (No. 92-1183). Days argued, however, that neither the language nor the legislative history of the statute sup- ported an interpretation that criminalized depictions in which the genitals or pubic area were not actually visible (as opposed to covered by clothing), and in which the children themselves were not lasciviously engaging in sexual conduct (as opposed to lasciviousness on the part of the photographer or consumer). Id. at 9. 4. Brief for the United States at 10-13, 20-23, Knox v. United States, 114 S. Ct. 375 (1993) (No. 92-1183). 5. Knox, 114 S. Ct. at 375. 6. Brief for the United States in Opposition at 6-12, Knox v. United States, 114 S. Ct. 375 (1993) (No. 92-1183). 2079

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