Brian and Garrett Fahy

When a justice you nominated to the Supreme Court, who shares your view of proper constitutional interpretation, tells your Solicitor General that neither she nor the rest of the Court is buying your argument, you know you’re in trouble. Justice Sonia Sotomayor’s rebuke to Solicitor General Donald Verrilli during last week’s oral argument on Arizona’s immigration law was the most recent example of the Obama Administration’s continued difficulties before the nation’s highest court.

The media narrative is that Mr. Verrilli has either been outmatched by his opponent, in many cases former Solicitor General Paul Clement, or that the Court has been unusually (and unfairly) hostile to Mr. Verrilli’s arguments. This spin ignores the real issue. The true cause of the difficulties lies not with Mr. Verrilli’s rhetorical abilities, but with the indefensible positions he has advocated at the behest of the president he serves.

Recently, the Solicitor General’s office, which represents the federal government before the Supreme Court, has unsuccessfully represented the Obama Administration in a host of controversial cases: the campaign finance restrictions in the Citizens United case (the administration lost 5-4), the ministerial exception Hosanna Tabor (the administration lost 9-0), the challenges to the Patient Protection and Affordable Care Act (it looks likely the administration will lose at least in part), and, most recently, the administration’s challenge to S.B. 1070, Arizona’s controversial immigration law (ditto).

In view of these results, the Court apparently harbors no “empathy” for the Administration’s view of the Constitution. Further, while consistency is usually a commendable trait, consistency of this sort is not. It bespeaks an administration guided by policies in fundamental conflict with both the letter and spirit of the Constitution and the statutes and case law promulgated under it. Hosanna Tabor is probably the clearest example of this.

The question before the Court in Hosanna Tabor was whether the “ministerial exception” shielded a Lutheran church/school in Missouri from a discrimination and retaliation lawsuit brought by Obama’s Equal Opportunity Commission and a former teacher at the school. The ministerial exception provides that because religious employers are free to determine whom they choose to hire and fire in furtherance of their religious mission, they are (generally) exempt from federal anti-discrimination laws that otherwise apply to employment decisions.

Brian and Garrett Fahy

Brian and Garrett Fahy are attorneys from Los Angeles who previously worked in the White House and Senate Republican Conference, respectively. They write on national legal and political affairs. They can be reached at