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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
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
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
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

Solicitor General's
Winning Ways

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