Noel Francisco, Trump’s Tenth Justice

Noel Francisco has granted that he was the “last man standing” in line for the job of solicitor general of the United States. The Trump administration’s top Department of Justice lawyer before the Supreme Court, he is one of the lesser-known figures in the slow shaping, or reshaping, of the rule of law to the whims of a president who never cared much for it.

From the moment Donald Trump took the oath to protect and defend the Constitution, Francisco became the top political deputy at the Office of the Solicitor General, but he wasn’t the president’s first choice to lead the office. As with other legal administration posts for which a few good men and women were hard to come by, a number of candidates had been considered to head this prestigious arm of the Justice Department—among them, Chuck Cooper, a lawyer with deep roots in Republican politics and experience in the Reagan administration; star conservative litigator Miguel Estrada; and George Conway, one of the architects of Clinton v. Jones and the husband of Trump’s White House counselor, Kellyanne Conway. They all passed.

But Francisco soldiered on. As the Justice Department has shifted priorities under Attorney General Jeff Sessions, who has embraced Trump’s hardline approach to immigration, religion, and criminal punishment, to name only a few areas of policy, the solicitor general has done his part to defend those priorities, working quietly behind the scenes to advance the administration’s conception of the law. And for someone who was last in the pecking order, Francisco’s wins have been remarkable. Chief among them was the Supreme Court’s servility toward the Trump administration’s executive order banning people from predominantly Muslim countries from entering the United States, where a five-justice majority accepted Francisco’s broad assertion of presidential authority over immigration policy, even in the face of incontrovertible evidence of Trump’s own bigotry toward a minority religion. The section of the Immigration and Nationality Act under which Trump issued his entry ban, wrote Chief Justice John Roberts, “exudes deference to the President in every clause.” And because the text of the ban on Muslims doesn’t mention Islam explicitly, the Constitution’s bar on religious discrimination by government figures doesn’t apply to Trump’s executive order, which otherwise “has a legitimate grounding in national security concerns.” In other words, the long history of anti-Muslim sentiment voiced by Trump is irrelevant.

Francisco’s part in the outcome of that case wasn’t without controversy. Charges that he had misled the justices during oral arguments about Trump’s supposed public disavowal of his earlier Islamophobic comments led the solicitor general to later correct the record, a move that falls far short of the “confession of error” that his office, historically, has been known for. (As legal twists would have it, perhaps the most memorable of these confessions came when Neal Katyal, as acting solicitor general during the Obama administration, owned up to the federal government’s part in hiding from the Supreme Court vital intelligence that undermined the rationale for the relocation and internment of Japanese Americans during World War II. “Today, our Office takes this history as an important reminder that the ‘special credence’ the Solicitor General enjoys before the Supreme Court requires great responsibility and a duty of absolute candor in our representations to the Court,” Katyal wrote in 2011. Six years later, Katyal would be in court representing Hawaii in its constitutional challenge to Trump’s executive order.)

“The president has made crystal clear on September 25 that he had no intention of imposing the Muslim ban,” Francisco initially told the justices near the close of his oral presentation in April. But Trump made no such thing clear on that day, not even remotely. Francisco wrote, in a subsequent letter to the Supreme Court days after oral arguments in Trump v. Hawaii, that what he had really meant was January 25, 2017. But that date made matters more unclear: January 25 was just five days into the new administration and before Trump issued his first order excluding Muslim nationals—which would go on to cause chaos at airports, spur protests across the country, and be quickly blocked or curtailed by the courts. It made little sense that Trump had reneged on his campaign promise to ban Muslims while still plotting actively to target them. Other advocates and former administration officials said that Francisco had been less than forthcoming about the travel ban’s process for exempting certain nationals from its restrictions for humanitarian or other reasons, which he defended as “a good thing”—though Justice Stephen Breyer worried that it may be no more than “window-dressing” to make the ban appear more palatable.

None of these last-minute revelations mattered. The Supreme Court ruled resoundingly for Francisco’s position in June, giving Trump the biggest legal win of his administration—and, arguably, some cover for other excesses in immigration enforcement, in which his disdain for non-citizens and immigrant families has been apparent since day one. Not even Justice Anthony Kennedy, for thirty years a stalwart of the First Amendment and religious tolerance, could mutter anything other than a mild rebuke of the president, to whom Kennedy’s retirement has given the opportunity to choose a replacement. Francisco seemed to notice. In a public statement—a rare occurrence for a solicitor general—on the day of Kennedy’s retirement announcement, he said he was “appreciative” to the outgoing justice for his years of service: “His jurisprudence has left an indelible mark and his commitment to our cherished First Amendment freedom of speech will be a legacy for generations to come.” He may as well have thanked him for the court vacancy itself: if Trump gets his way and replaces Kennedy with his nominee, US Circuit Judge Brett Kavanaugh, a staunch conservative, Francisco can expect to be celebrating many more victories in the years to come.

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The sole client of the solicitor general, the Department of Justice lawyer who represents the federal government before the Supreme Court, is the United States. The office-holder is a presidential appointee confirmed with the advice and consent of the Senate, but traditionally he neither represents the president, nor his political agenda, nor even the interests of the attorney general, who is above him in the chain of command—although he keeps all of those actors and factors in mind in his decision-making. The solicitor general’s duty, first and foremost, is to the Constitution and the laws the people entrusted him to defend. In that same spirit, the solicitor general is the only executive-branch official required to be “learned in the law” (there is no similar statutory requirement for any other legal officer of the US government, not even for the justices of the Supreme Court).

The solicitor general is, of course, an administration official, and so serves at the pleasure of the president, which means that he is generally sympathetic to, if not wholly in tune with, the policy preferences of the White House. But he has an independent responsibility to assess the government’s litigating position on the merits, dispassionately and without regard for political expediency or winning in court. “The Solicitor General has no master to serve except his country,” Francis Biddle wrote in his 1962 memoir of his time in the post, In Brief Authority. Confessing error in a case the government shouldn’t have won, Frederick Lehmann, who served as solicitor general between 1910 and 1912, noted that his office answers to a higher loyalty than just prevailing in a given case. “The United States wins its point whenever justice is done its citizens in the courts,” he wrote. Drawing from these and other authorities, Seth Waxman, who served as President Bill Clinton’s solicitor general, said in a 1998 speech that it was his responsibility “to ensure that the United States speaks in court with a single voice—a voice that speaks on behalf of the rule of law.”

From that fidelity flows what is perhaps the most distinctive feature of the office of the solicitor general, or SG, as the post is colloquially known: its dual role as an officer within the executive branch and one with special duties toward the judiciary. The Supreme Court defers to the solicitor general’s judgment in a way that it does not for any other party before it, taking seriously his counsel on matters of federal law and whether a specific case in which the government isn’t involved should be heard. Even during the Court’s tumultuous 2016 term—which found the justices one member short, welcomed the arrival of Justice Neil Gorsuch, and saw a change in administrations, with a succession of three different acting SGs—the solicitor general’s office had a “consistent success rate” at the Supreme Court, according to a Bloomberg BNA analysis.

That enviable streak, as well as the solicitor general’s unique traditions and the office’s relationship to the nation’s highest court, are recounted in great depth in The Tenth Justice: The Solicitor General and the Rule of Law, Lincoln Caplan’s definitive account of this highly prestigious, insular, and, to this day, rather obscure operation within the Justice Department. One unifying thread in Caplan’s 1987 book is the inherent tension between a solicitor general’s duty to the law and his loyalty to the policy priorities of the president who appointed him, including how the solicitor general treats the numerous legal and political actors who straddle that fuzzy line on the most contentious issues.

In the wake of a tug-of-war inside the Carter administration, for example, over what position to take in a landmark affirmative action case, Caplan uncovered a 1977 memorandum drafted by the Justice Department’s Office of Legal Counsel that tried to grapple with this tension, and what the SG is to do when politics encroaches on the independence of his legal judgments. Generally speaking, the solicitor general has no say over matters of policy, the memo maintained. “But the Attorney General and the President should trust the judgment of the Solicitor General not only in determining questions of law but also in distinguishing between questions of law and questions of policy.” The memo went on: “If the independent legal advice of the Solicitor General is to be preserved, it should normally be the Solicitor General who decides when to seek the advice of the Attorney General or the President in a given case.”

These principles, which aren’t etched in stone but are more a matter of unwritten traditions and norms, were shoved to one side almost completely during the Reagan administration, to which Caplan dedicates the main part of The Tenth Justice—so titled for the special rapport this quasi-judicial officer holds with the nine justices of the Supreme Court. That bond of trust was eroded a great deal during the Reagan years. Rex Lee, Reagan’s first solicitor general, was fed up by the impression that his legal positions in court were no more than kowtowing to the president or his acolytes. “There has been this notion that my job is to press the administration’s policies at every turn and announce true conservative principles through the pages of my briefs. It is not. I’m the solicitor general, not the pamphleteer general,” he once complained.

It was Lee’s recusal (due to an apparent conflict of interest) early on in the Reagan administration, in a case where the White House overruled the acting solicitor general’s determination that racially discriminatory religious schools should lose their tax-exempt status, that led to the creation of a political post inside the office. Bob Jones University v. United States was an unmitigated disaster for Reagan: aside from the intense public backlash, the Supreme Court ruled 8-to-1 against his preferred position, which was a reversal of a legal stance adopted during the Nixon administration. Serving as Lee’s stand-in, the acting solicitor general, a longtime career deputy who went on to serve several presidents, had warned the administration—and the Supreme Court—that the reversal was ill-advised. But the Reagan White House pressed on. And lost badly. Since that moment, to avoid further embarrassments to a president’s social policy agenda in the event that a Senate-confirmed solicitor general had to step aside from a case, the position of principal deputy solicitor general was born.

That’s the title Francisco held on day one of the Trump administration, his office’s sole political deputy among a cadre of career deputies and assistants who are not subject to political tides and often serve across several administrations. With Francisco at the helm, or just in the background, Trump’s solicitor general’s office has—to an extent far greater than its modern predecessors—aggressively changed the government’s litigating positions midstream, staked out extreme stances in pending cases where the government is not even a party, and made extravagant requests of the Supreme Court. And in several cases, though not all, the Court has acceded to those requests.

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Francisco’s credentials as the forty-eighth solicitor general of the United States are sterling, as well as typical for someone appointed to a top Trump administration legal job. They include a judicial clerkship with the late Justice Antonin Scalia and former appeals judge J. Michael Luttig; legal work on the Florida recount that, with Supreme Court intervention, gave George W. Bush the presidency; prior service in that administration, both in the White House and the Department of Justice; and later private-sector work at Jones Day, a big feeder firm for Trump administration legal posts. It also didn’t hurt that Francisco had faced off against the Obama administration three times before the Supreme Court. He won a reversal of former Virginia governor Bob McDonnell’s multiple corruption convictions, a judgment that President Obama’s recess appointments of certain members of National Labor Relations Board were unconstitutional, and a middling ruling in a contentious case involving religious nonprofits and contraception, a follow-up of sorts to the controversial Hobby Lobby case.

After Trump nominated Francisco as his first SG, Francisco left the political deputy post as he awaited confirmation. Francisco’s hearing before the Senate Judiciary Committee in May 2017 was almost a non-event; Trump had fired James Comey, the FBI director, a day earlier, and neither the press nor Democratic lawmakers paid Francisco the level of attention that his direct supervisor, Jeff Sessions, got during his confirmation battle. But things became more combative when it was time for the committee to vote on his nomination. By then, Deputy Attorney General Rod Rosenstein, Sessions’s second-in-command at the Justice Department, had appointed Robert Mueller as special counsel to oversee the investigation into Russia’s interactions with the Trump campaign. And Trump, enraged with Sessions for recusing himself from that investigation, resented Mueller’s appointment as a kind of disloyalty on Sessions’s part. In the event of Rosenstein’s firing, those further down in the direct line of succession at the leadership of the Justice Department, including Francisco, could end up with oversight of the Russia investigation.

“He’s supposed to be an independent voice within the administration,” said Dianne Feinstein, the ranking Democrat on the Senate committee vetting Francisco, during a hearing immediately preceding the vote on his nomination. “Bottom line, I’m concerned that he will approach his role as Mr. Trump’s solicitor general and not the Solicitor General of the United States.” Francisco’s nomination was approved out of committee on a strictly partisan vote, 11-to-9, and the full Senate vote was equally partisan—not a single Democratic senator voted in Francisco’s favor. (I asked the DOJ for an interview with Francisco, but a spokeswoman told me he’s not giving any.)

The newly-confirmed SG got right to work. Beside the federal government’s defense of Trump’s Muslim travel ban, in which the administration took the extreme position that courts have no power to review broad assertions of presidential power on matters touching national security, the solicitor general’s office pushed on several occasions for reversals in pending cases before the Supreme Court or the courts of appeals. Sometimes, as in the Bob Jones showdown, this involved going against the judgment of independent or quasi-independent government agencies, to which presidents of either party traditionally defer because those agencies are the ones with expert knowledge regarding the laws they administer.

While Francisco’s nomination was pending, the Trump administration had already staked out positions diametrically opposed to those reached by the Consumer Financial Protection Bureau and the Equal Employment Opportunity Commission, each of which had independently determined key matters within their statutory authority. In the CFPB dispute, in which the agency was defending the constitutionality of its own operational mandate under the Dodd-Frank Act, the Trump administration intervened to argue that this protocol—which allowed for the firing of its director only “for cause”—was unconstitutional. The Justice Department made this argument despite its previous, contrary position (under the Obama administration) that there was nothing wrong with that portion of the law, which Congress enacted precisely to insulate the CFPB director from a mercurial, Trump-like figure.

“After reviewing the panel’s opinion here and further considering the issue, the Department has concluded that the better view is that the provision is unconstitutional,” read a footnote from a brief filed before the appeals court in Washington, D.C. As required by law whenever the Justice Department declines to defend a duly enacted statute in court, Jeffrey Wall, Francisco’s deputy and acting solicitor general at the time, told Congress of the change in position. The full appeals court ultimately rejected that view and sided with the CFPB on that question.

In the Equal Employment Opportunity Commission case heard in September 2017, shortly after Francisco’s confirmation, Sessions’s Justice Department went against the employment agency over a question on which the courts of appeals are increasingly in agreement: whether the prohibition against “sex” discrimination in federal employment law covers discrimination against gay workers. The courts and the Commission have largely answered that question in the affirmative, but the Trump administration has taken a contrary view: that sex, as Congress in 1964 understood the word, refers only to gender, not sexual orientation, and thus the firing of a lesbian employee for, say, hanging a picture in her cubicle of her wife isn’t unlawful sex discrimination. When the full federal appeals court in Manhattan heard the case, known as Zarda v. Altitude Express, the judges were very curious about why the government was clashing with one of its own agencies.

“Does DOJ generally defer to the EEOC on Title VII questions?” asked Judge Rosemary Pooler, as if to suggest some sort of White House meddling, or micromanaging, over agency expertise on legal questions. Hashim Mooppan, the government lawyer dispatched to make the administration’s case, wouldn’t budge, citing confidential “deliberative process” privilege. There, too, the appeals court ultimately ruled against the Trump administration and for the EEOC.

Earlier this year, in another, little-noticed case dealing with a prisoner’s right to challenge a sentence premised on an erroneous interpretation of the law, the US Court of Appeals for the Fourth Circuit went to town on the Justice Department for reversing a position it had observed for well over a decade. Calling the reversal “curious” and oddly timed, the court didn’t accept it, and directly called out the solicitor general’s office on it. “The Government’s about-face is particularly distasteful in this case wherein the Government cannot identify any principled reason for its turnabout,” wrote US Circuit Judge Stephanie Thacker for a three-judge panel. “It was not until oral argument that the Assistant to the Solicitor General attributed this change of position to ‘new leadership in the [Justice] Department.’” Undeterred, the Trump administration has continued to push this disfavored position before the Supreme Court, which is yet to settle the question and could leave many a prisoner serving out unlawful sentences.

I attended both the CFPB and the EEOC hearings in federal court, and at each I couldn’t help but marvel at the administration’s audacity in opposing its own agencies in court. And I wondered whether the Trump administration, through Francisco’s office, would attempt similarly sharp departures from prior stances in cases before the Supreme Court itself. Chuck Cooper, who is close to both Sessions and Francisco, told me that such legal reversals are to be expected. “That’s a consequence of the democratic process that is a mark of its vitality,” Cooper told me. “Change of a government’s legal position was not only within the authority of the new solicitor general, it was to be expected in matters of the kind… that were before the Supreme Court.”

But is it so routine a matter? Or should it be? It turns out that Justice Elena Kagan, Obama’s first solicitor general, and Paul Clement, a noted Supreme Court practitioner who was Bush’s second and a longtime deputy before that, touched precisely on that question: the standard for a legal reversal from one administration to the next. And they both signaled in no uncertain terms that the solicitor general’s higher loyalty to the law and the country’s institutional commitments meant reversals should be few and far between. “The office was very clear that you were supposed to think long and hard and then you were supposed to think long and hard again before you changed anything,” Kagan told an audience at the American Law Institute’s 95th annual meeting in May. “What the office is supposed to be doing is… serving the long-term interests of the United States, not any one president. The credibility of the office in great measure depends on judges’ actually believing that that’s what you’re doing.”

“Changing positions is a really big deal, that people should hesitate a long time over it,” Kagan went on. “Which is not to say it should never happen… I’m sure every administration changes some positions. But the bar should be high.”

Clement, for his part, pointed to his own experience as deputy for Barbara Underwood, the Clinton appointee who led the solicitor general’s office in an acting capacity for the first five months of the Bush administration. (Underwood recently became attorney general for the state of New York, following Eric Schneiderman’s resignation from that post.) “The positions, to the extent that they changed at all, changed so much at the margin… that process was very, very smooth.” He added that the very fact of a seamless transition with a Clinton holdover at the helm “just underscores how much there is that presumption that things are not going to change.” And Clement added: “If both administrations are looking out for the long-term interests of the executive branch, they really shouldn’t change that much.”

Not so with Trump’s solicitor general’s office. In some of the biggest cases of the Supreme Court’s last term, the solicitor general’s office reversed the United States’ legal position in cases already in motion, by jumping in as an amicus or outside party, or by opposing federal agencies despite their expertise on the subject under review. Sometimes, Francisco’s office seemed simply to be sticking it to the Obama administration on a string of issues, such as the constitutionality of “fair share” public-sector union fees; the National Labor Relations Board’s determination that workers may challenge arbitration agreements by banding together and suing under federal labor law; the Securities and Exchange Commission’s decision to treat in-house judges as administrative employees not subject to political removal; and a long-held position by the Justice Department under prior administrations, both Republican and Democratic, that federal law constrains states’ ability to “purge” voters from their registration rolls if they haven’t voted for a certain period of time.

To their credit, both Francisco and Wall, his deputy, have been candid about why they were reversing course. In the infancy of the NLRB case, filed during the final months of the Obama administration, seven lawyers for the agency signed the brief endorsing the Justice Department’s stance that federal labor law empowers workers to opt out of arbitration agreements and sue collectively in court. “After the change in administration, the office reconsidered the issue and has reached the opposite conclusion,” Wall said in a follow-up brief filed last year, this time without anyone from the NLRB signing on. With Wall’s blessing, the board filed its own brief and dispatched its own lawyer to oppose Wall at oral argument. By and large, “change in administrations” has been the default justification for these about-faces.

Surprisingly, the justices seemed incurious about these reversals and made hardly any fuss when the solicitor general or one of his deputies or assistants appeared in court to defend them. During the Obama administration and in cases that weren’t nearly as headline-grabbing, both Chief Justice Roberts and Justice Antonin Scalia expressed doubts when the solicitor general changed his tune from that of prior administrations. “Why should we listen to you rather than the solicitors general who took the opposite position?” Scalia once asked of Donald Verrilli, Obama’s second solicitor general. “Why should we defer to the views of the current administration?” Picking up on Scalia’s point, which took issue with Verrili’s stance that American courts may sometimes hear lawsuits over human-rights violations abroad, Roberts soon jumped in: “Whatever deference you are entitled to is compromised by the fact that your predecessors took a different position.”

On a different occasion, Roberts, himself formerly a principal deputy solicitor general under George H.W. Bush, delivered a stern lecture to a non-political assistant at the office he once helped lead, for what Roberts called a “disingenuous” defense for the Department of Justice’s change in position in a labor case. Caplan, writing for The New York Times in 2012, observed that the chief’s words “read like bullying.”

There were no such lectures for Francisco during his first full term as solicitor general—with one striking exception from Justice Sonia Sotomayor. In the Ohio voter purge case, she directly confronted Francisco for going against a long-accepted reading of federal law that, if embraced by the Supreme Court, would have “a negative impact on certain groups in this society.” “There’s a twenty-four-year history of solicitor generals of both political parties… presidents of both political parties who have taken a position contrary to yours,” Sotomayor said, and she went on to add: “[It] seems quite unusual that your office would change its position so dramatically.” In the public unions case, and perhaps sensing that the reversals were becoming a pattern, she was bolder still. “This is such a radical new position on your part,” Sotomayor charged. “How many times this term already have you flipped positions from prior administrations?” Francisco low-balled it: “Your Honor, I think that we have revised the position in so far three cases.”

By the end of the term, it was four. And in every case except one, the Supreme Court—which is to say, the five-justice conservative majority—ruled for the Trump administration. “I’m very proud of our legal team. In four cases, after careful review, we changed the Department’s position in order to follow the law,” Sessions said in a statement on the last day of the Supreme Court’s term. “The favorable Supreme Court decisions in all four cases reflect that we took the proper course of action. The decisions speak for themselves.” Kenneth Starr, George H.W. Bush’s solicitor general and the independent counsel who investigated Bill Clinton, wrote in an effusive editorial for The National  Law Journal, which the Justice Department blasted out to reporters, that Francisco’s record “represents a magnificent achievement for any occupant of that office—and all the more so for a rookie.”

That’s not to say that Francisco and Sessions got everything they asked for. In the closely watched case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court rejected the Justice Department’s alarming request to create a First Amendment exemption to public accommodations laws that apply to every business owner, an ask that could have blown a hole through civil-rights statutes and precedent dating back to the 1960s. There were reportedly deep divisions within the Justice Department on whether even to file a brief in this controversy, which pitted a married gay couple against a religious baker who, citing his Christian beliefs, had denied them a custom-made wedding cake. “Forcing Phillips to create expression for and participate in a ceremony that violates his sincerely held religious beliefs invades his First Amendment rights,” read the brief, which was signed by Wall together with a slew of political and staff lawyers from other corners of the DOJ, though no prominent career deputies or assistants from the solicitor general’s office. At a religion forum held at the Department of Justice in late July, Jeff Sessions appeared to take credit for the solicitor general’s intervention in the dispute: “We were proud to file a brief in support of Jack Phillips.”

And in a wonky case over the constitutional status of administrative law judges, one of the four disputes where Sessions touted a victory, the Supreme Court declined to go along with Francisco’s invitation to rule on the additional question of whether a statute may constrain the president’s power to fire a subordinate officer. The question, technical as it may seem, had direct implications for Trump’s ability to fire Robert Mueller and would have realized a longstanding conservative ambition to make the president the undisputed ruler over every nook and cranny of the federal government. In its ruling in Lucia v. SEC, the Supreme Court, through Justice Elena Kagan, ruled for the government, but in the process she called out Francisco’s switch in sides in a case in which, up to that point, the Justice Department had defended the position of the Securities and Exchange Commission. As to the removal question, she dinged the solicitor general for insisting on pushing an issue that wasn’t squarely presented in the dispute. “When we granted certiorari, we chose not to take that step,” Kagan wrote for a fractured, 6-to-3 majority that took issue with Francisco’s insistence in attempting to get the Supreme Court to embrace its theory of presidential authority.

Even if Chuck Cooper is right that the change of administration legitimately explains Francisco’s reversals of Justice Department positions, this hardly accounts for the solicitor general’s boldest, most political act to date: petitioning the Supreme Court to impose “disciplinary action” on lawyers for the American Civil Liberties Union. For several weeks in September and October of last year, the ACLU attempted, as part of a broader class-action challenge, to assist a pregnant undocumented teen in detention to obtain an abortion, after winning a lower-court judgment that cleared the way for the procedure to take place. Again, with no career lawyers from his own office signing the administration’s brief, Francisco plowed ahead and called on the justices to impose sanctions on the ACLU because its lawyers were not keeping the government abreast of the exact “timing” of the procedure. Steven Shapiro, who served as the national legal director for the ACLU from 1993 to 2016, told me through a spokesperson that he couldn’t recall a single instance when the federal government had gone after his organization in such a manner. In the event, the Supreme Court refused to play along, issuing a muted, unsigned ruling that declined to “delve into the factual disputes raised by the parties.” Inexplicably, though, and perhaps as a sign of an internal rift among the justices, Francisco’s petition sat for seven months on the court’s docket without a decision.

That case, Azar v. Garza, may yet return to the Supreme Court, as other intricacies of the dispute are still playing out in the lower courts. (The teenager did obtain the abortion.) The case involves high stakes for the Trump administration since the issues it poses lie at the intersection of immigration, a woman’s constitutional right to choose, the treatment of minors at the border, and even the pending nomination of Kavanaugh, who dissented strongly when the case landed before his court, the US Court of Appeals for the D.C. Circuit. (If Kavanaugh is confirmed, and the case goes to the high court again, he will have to recuse himself.) Given Francisco’s record, I expect the solicitor general to fight this case all the way. Attorney General Jeff Sessions has made it very clear that he was “disturbed” by how the case has played out so far.

The solicitor general may also be expected to go to the mat for Sessions and Trump in their callous quest to sabotage the Affordable Care Act. Congressional Republicans have failed in their efforts to repeal Obama’s leading legislative accomplishment, so the Trump administration is attempting to kill it piecemeal by other means. Presently, the administration is in the middle of a frivolous, Texas-led lawsuit that seeks, through a statutory sleight of hand, to declare invalid key provisions of the healthcare law, such as the prohibition on denying coverage to patients with preexisting conditions. Because Sessions is required by law to notify Congress whenever a duly enacted statute won’t be defended in court, there’s little doubt that Francisco played a part in those deliberations. Again, not everyone at the Justice Department was on board: one senior official who had for years stood up for the healthcare law in the courts resigned in the wake of Sessions’s abdication of that position, and this official, along with two others, withdrew from the case moments before political appointees at the department intervened in the Texas case. 

Confronted with the question of whether politics influences his work, the solicitor general told an audience at the Catholic University of America in January that “politics in the partisan sense” isn’t what guides him. “You might have a different approach to the law, but you’re still trying to figure out under general principles what is the right answer,” he said. Francisco’s record before the Supreme Court suggests that he has adapted himself willingly and well to Sessions’s strategy at the Justice Department, to a degree where it has become difficult to tell whether his legal steps are really his own or result from an effort to stay in lockstep with the attorney general and the president. Assuming Kavanaugh is confirmed, and with a 5-4 conservative majority on the Court all but locked in, Francisco will be in the driving seat to guide a new era of conservative jurisprudence at the high court. Solicitor General Francisco will indeed be the tenth justice, shepherding the other five as they enshrine into law an ever-more partisan conception of what our Constitution should be.