Drew Attention by Attacking Past Supreme Court Rulings : Former Solicitor General Trumpets Victories

The quiet days of July have settled on the solicitor general’s office, time to count wins and losses during the Supreme Court term just ended. This year’s score card has the entire office smiling, even prompting some uncharacteristic boasting.

Just two years ago, the Ronald Reagan Administration’s solicitor general, Charles Fried, was being publicly lambasted. Liberals and some court scholars accused him of having injected politics into a respected, nonpartisan legal post. Conservatives were no happier, calling him a failure before the Supreme Court.

Now, Fried is crowing over this year’s series of conservative victories.

“We’ve had good years and bad years, but this was a sensational year,” said Fried, who represented the government through most of the court term before returning to teaching at Harvard Law School in late January. “In everything I argued for this year, we won. It shows that patience pays off.”

Turned Spotlight on Office

As the Justice Department’s chief courtroom attorney, the solicitor general represents the federal government in cases heard by the Supreme Court. Although court observers contend that the solicitor general’s ability to sway the Supreme Court is limited at best, Fried’s sweeping attacks on past court rulings turned a spotlight on the previously obscure office.

As highlights of the last court term, Fried cited rulings cutting back affirmative action, endorsing drug testing of employees, upholding the tough new federal sentencing rules and giving the states more authority to regulate abortion. By the Justice Department’s count, the solicitor general’s office won 67 cases this year, lost 14 and had 4 ties.

That is a better record than in previous terms: The combined 1987-88 tally was 59-29-3. The government generally wins most of its cases, even in its worst years. The high court issues decisions in roughly 160 cases per year, about half of which involve the federal government in some way.

Created in 1870, the solicitor general’s office had maintained a distinguished pedigree. Its occupants included William Howard Taft, who went on to become President and Supreme Court chief justice; Charles Evans Hughes, who also became chief justice; Robert H. Jackson, later a Supreme Court justice and a U.S. prosecutor at the Nuremberg trials, and Archibald Cox, the Watergate prosecutor. Some former solicitors, such as Justice Thurgood Marshall, became identified as legal liberals, whereas others, such as failed Supreme Court nominee Robert H. Bork, were identified as conservatives. But during their terms as solicitors general, they were seen as nonpolitical and non-ideological.

Until Fried’s tenure, the office was also perceived as serving all three branches of government. The solicitor was considered an adviser and aide to the Supreme Court. He defended the laws enacted by Congress. And he served in the executive branch as an appointee of the President.

Fried took office in 1985 after his predecessor, Rex Lee, resigned amid conservative complaints that he had failed to vigorously push the Reagan agenda before the Supreme Court.

Appointed by Atty. Gen. Edwin Meese III, Fried urged the justices to flatly outlaw affirmative action and to overturn the 1973 Roe vs. Wade ruling that made abortion legal. He made clear from the start that he advocated the views of the President and the attorney general, even when Congress and Supreme Court precedents might have dictated other positions. Last year, for example, Fried urged the justices to strike down the independent counsel law enacted by Congress, which had proven to be a thorn for several top Reagan Administration officials. He lost on a 7-1 vote.

Despite the solicitor’s numerous victories this year, many lawyers and law professors are reluctant to give Fried or his colleagues much credit for them.

“I think the solicitor had a pretty marginal impact in the most contentious, most publicized cases,” said Georgetown University law professor Louis M. Seidman. “In these cases, the justices generally have fairly fixed opinions going in.”

University of Chicago law professor Michael McConnell, who served in the solicitor’s office in the first Reagan term, agrees. “In a case like Webster (a Missouri abortion case heard by the high court), the Justice Department is largely irrelevant,” McConnell said. “The justices know what they think, and the advocates don’t really change any views.”

Attacked Roe Vs. Wade

In April, Fried turned the Missouri abortion appeal into an all-out attack on Roe vs. Wade, a tactic that got the attention of the justices but did not appear to have changed any votes. Because abortion involves the “purposeful termination . . . of actual human life,” Fried argued, the Constitution’s guarantees of individual liberty and privacy do not cover a woman’s decision to end her pregnancy.

“Do you say there is no fundamental right to decide whether to have a child or not?” interjected Justice Sandra Day O’Connor. “Do you deny that the Constitution protects that right?” Fried asserted that the Constitution “takes no position” on abortion, making it a matter to be left to the states.

The 5-4 ruling issued two weeks ago upheld the authority of states to limit the availability of abortion--as lawyers for Missouri had urged--but only Justice Antonin Scalia agreed with Fried’s argument that Roe vs. Wade should be overturned entirely.

Back in Washington last week to testify on Capitol Hill on the flag-burning controversy, Fried said he considers the abortion ruling a clear victory. “We got everything we hoped to get or expected to get in that case,” he said.

But his critics, along with some supporters, suggested that Fried’s “overreaching” might have offended moderate conservatives such as O’Connor.

“His arguments call attention to themselves but I would guess they don’t affect the outcome much. If anything, they may have kept O’Connor from going further in his direction,” said Lincoln Caplan, author of “The Tenth Justice,” a 1987 book that was harshly critical of Fried and the Reagan Administration’s approach to the Supreme Court.

Fried’s predecessor, Lee, who was recently named president of Brigham Young University, questioned the tactic of using extreme arguments before the court, although he said he did not mean to criticize Fried personally. “I think it is best to ask yourself: ‘What are the best grounds for winning this case?’ I think you are better off trying win them one at a time, rather than reaching too broadly,” Lee said. “You can’t always go for a long touchdown pass.”

Conservatives are pleased with this year’s rulings, although they were quick to note that the decisions primarily reflect the arrival of Justice Anthony M. Kennedy. The third Reagan appointee to the court, Kennedy solidified a 5-4 conservative majority this year.

“They (the solicitor’s office) had some very big wins this year, but they didn’t file in the flag case,” observed Alan Slobodin, director of legal studies for the conservative Washington Legal Foundation.

Fried refused to file a friend-of-the-court brief supporting Texas in its prosecution of flag-burner Gregory Johnson. The reason became clear after last month’s controversial court ruling upholding Johnson’s right to desecrate the flag. A refugee of Nazi Germany and Soviet-dominated Czechoslovakia, Fried told a congressional subcommittee this week that he agreed with the court’s view that the government should not be permitted to punish someone for denouncing the government or its symbols.

Rather than swaying the high court in major cases, the real power of the solicitor’s office is more subtle, several lawyers noted. Its lawyers pick through federal court rulings and decide which cases should be appealed to the Supreme Court. And their appeal requests are generally granted.

“They have real influence in getting the court to hear cases. They don’t do as well on influencing how it will come out,” Washington lawyer Alan Morrison said.

In some years, the high court has agreed to hear as many as 80% of the appeals filed by the solicitor general but only 3% of those filed by other lawyers. The result is that the Justice Department, through the solicitor general, can keep its favorite issues before the court.

Now that power has been turned over to Kenneth W. Starr, formerly a federal appeals court judge and a Reagan Administration official. Mild-mannered and scholarly, Starr was known as a moderate conservative on the bench. He took office in May, after the Supreme Court had heard final arguments in what turned out to be a tumultuous term.