Context and case-specific facts clearly mattered a great deal in O’Connor’s jurisprudence. But Chemerinsky, for all his academic renown, did not put in the legwork necessary to accurately describe the facts of our case. Chemerinsky’s brief described the monument as towering before the Capitol and as the “lone” religious symbol to be found on the Texas State Capitol grounds. He described a “large,” “uniquely prominent” religious monument, “in front” of the Capitol “on the Great Walk,” situated “by itself” so that “no other monuments [are] visible when standing before it.”
Every element of that description was false. The monument is one of the smallest on the Capitol grounds, is in back of the Capitol, and is surrounded by six other visible monuments. Numerous other monuments contain religious references, and what Chemerinsky erroneously described as “the Great Walk” (which leads to the main entrance found on the front side of the Capitol) is, in fact, a driveway on which Capitol staff park their cars.
Religious references on other monuments on the grounds include a statue of a young girl wearing a Cross in the Tribute to Texas Children, the words “God - Country - Peace” on the Veterans of World War I memorial, and the Aztec symbol of the eagle on a cactus. The latter is part of the Mexican flag, which appears multiple times across the Capitol grounds. In the center of the Mexican flag is a brown eagle eating a serpent, while perched on a prickly-pear cactus growing from a rock surrounded by water. The Aztecs believed that their leaders were given this image in dreams by the Sun God Huitzilopochtli, as the site where they should found their theocratic capital Tenochtitlán. Founded in 1325 A.D. on a marshy island in Lake Texcoco, the city is the present-day site of Mexico City.
And, almost directly above the Ten Commandments monument, atop the Capitol dome, is the Goddess of Liberty. She stands nearly 16 feet tall and weighs 2000 pounds, and she likely represents Pallas Athena, the Greek goddess of wisdom and justice, who served as the protectress of the democratic city-state of Athens.
Close attention to detail is a hallmark of any good lawyer. But sometimes, when law professors litigate cases, they don’t put in the mundane effort to understand the facts on the ground. As I responded in our brief, Professor Chemerinsky’s brief was so far removed from the actual state of affairs at the monument that it could only have been written by someone who had never physically been there.
In our brief, we corrected those misrepresentations, which helped the Court get a fuller and more accurate assessment of the context of the monument.
Then we began preparing for oral argument. As solicitor general, it was typically my job to argue our cases before the Supreme Court. But my boss, Texas attorney general and future Governor Greg Abbott—a strong mentor and a good friend to this day—had made clear when I started that he wanted to argue a Supreme Court case.
Over the past century, some state attorneys general argued all of their state’s cases before the Supreme Court. Others would allow whatever career attorney happened to litigate the trial case to argue the Supreme Court case. Neither approach has proven a good one. Most attorneys general are politicians first, not appellate lawyers. And many line lawyers in AG offices are trial lawyers with little or no appellate experience. Either way, Supreme Court advocacy for the states suffered badly, and in the last couple decades that led to the rise of state solicitors general across the country.
State SGs are typically appellate specialists. Often, they are former Supreme Court clerks who know the Court well. And they lead offices of extremely talented appellate lawyers. In 2002, when the newly elected Abbott offered me the SG position, I was only thirty-one years old. I thought (hoped!) I could do the job well, but at the time I had only ever argued two cases in court, neither of which was before the Supreme Court. Abbott took a chance on me, offering to make me the youngest SG in the country.
I asked my old boss Chief Justice Rehnquist if I should take it. At the time, Heidi was working in the Bush White House, she loved her job, and taking the appointment would necessitate our commuting cross-country, not an easy proposition. The Chief was emphatic that I should take the post. States are the second most frequent litigants before the Court, behind only the U.S. government. The Chief told me that the rise of state SGs had dramatically improved the quality of appellate advocacy at the Court. Previously, much of it had been quite shoddy; “California is just terrible,” he observed.
Fortunately, Abbott was a much more skilled appellate lawyer than most state AGs, and he was committed to excellent appellate advocacy. Abbott himself had spent over a decade as a judge, both as a state trial judge and as a Texas Supreme Court justice. Abbott is not a micro-manager; he set broad objectives, but he didn’t try to run the day-to-day operations of Texas’s Office of the Solicitor General.
All that being said, Abbott had made clear when he appointed me that he wanted to argue one Supreme Court case and that I should be on the lookout for the best one for him to argue. When the Supreme Court granted cert in Van Orden, I went to Abbott and said that this was the one. It was an area of immense importance, with a discrete area of jurisprudence, and we would likely have the United States Solicitor General Paul Clement arguing alongside us.
Abbott agreed, and in the weeks before oral argument, he cleared his calendar of the myriad commitments that typically fill an attorney general’s day. He spent hour after hour after hour reading Supreme Court cases, reading the briefs, and talking with me and my team of lawyers about the issues and about our
