The Solicitor General is the Executive Branch’s officer in charge of litigation before the Supreme Court. The incumbent, Donald Verrilli, recently gave a speech in which he reflected on the difficulty of his post. “We’re at a time when a majority of the Supreme Court has a strong ideological perspective different from the president,” he said, adding that, “aside from the New Deal, this is probably the greatest amount of friction between the executive and judicial branches.”
The Supreme Court justices—all of them—believe they are applying the law in deciding cases, not indulging their political ideology. Even if Verrilli thinks otherwise and believes judges are essentially politicians in robes, it is foolish for the Solicitor General to impugn the self-conception of the justices he must persuade. .
And the claim that there are more fundamental differences between the Obama administration and any other Court except in the New Deal era is wrong. Begin at the beginning: the Jefferson administration so strongly opposed the review of its executive acts by the Supreme Court that it declined to participate in Marbury v. Madison, raising the prospect that it would not comply with an adverse decision.