One of Elizabeth Barchas Prelogar’s earliest memories is sitting in a courtroom when she was a young child. Her mother, a schoolteacher, had taken her to watch her father, a local Idaho lawyer, in a criminal trial. Prelogar recalls alternating between abject boredom and fascination with the formality of the court proceedings — the way the judge, lawyers, interpreter, and witnesses all played important roles and interacted with each other.
Now, decades later, Prelogar ’08 inhabits one of the most important roles in the most formal and consequential court proceedings in the nation. Since October 2021, she has led the office that represents the federal government’s interests before the Supreme Court. Often referred to as the “10th Justice,” the solicitor general of the United States is the most frequent advocate in the Supreme Court, serving as counsel in approximately three-quarters of all cases that are decided on the merits each year.
“Every case is its own puzzle,” says Prelogar, and thinking through its arguments, crafting its legal strategy, is “very intellectually satisfying and exhilarating.”
When Prelogar arrived at Harvard Law School in the fall of 2005, she could picture herself standing one day at the Supreme Court — but as a legal journalist, not as a lawyer. She had planned to pursue a career in print journalism, an interest she had cultivated as an undergraduate at Emory University, where she worked on the student newspaper and spent her summers interning at major newspapers.
Prelogar was a prolific writer from a young age. As a seventh grader, she would wake at the crack of dawn to attend a 7:40 a.m. class in English composition at Boise State University, which she took on top of her school curriculum. She published her first book in 1994 and wrote articles for Boise’s daily newspaper, the Idaho Statesman, as a teenager. At 23, she wrote a children’s book, “A Dad Just Like Mine,” inspired by her father, who was diagnosed with Parkinson’s disease when Prelogar was 2 years old. She was crowned Miss Idaho in 2004, having entered pageants in her spare time for the opportunity to earn scholarship money, and spent a year touring her home state’s elementary schools with the book in an effort to increase sensitivity toward people with disabilities. She also earned a master’s degree in creative writing from the University of St. Andrews in Scotland, and spent a year as a Fulbright Fellow in St. Petersburg, Russia, where she studied press censorship.
But Prelogar’s plans to be a legal reporter changed soon after she got to Harvard. “I just fell in love with the idea of practicing law and all the ways that lawyers can take their skills and talents and channel them toward the public good,” she said in an interview with the Bulletin. She quickly found herself drawn to appellate litigation because of its emphasis on becoming an expert in process, rather than a single subject area. “Every case is its own puzzle,” she said. “To think through the arguments, to craft the legal strategy in the case, and to think about how to best and most persuasively support the arguments, is for me very intellectually satisfying and exhilarating.”
At Harvard, Prelogar took Constitutional Law with Professor Richard H. Fallon Jr., for whom she later served as a research assistant. Fallon remembers her “can-do attitude,” which seemed never to falter, no matter the assignment. But he was equally struck by her modesty. “There’s never anything showy or ostentatious or self-promoting about her” despite her “remarkable talent and breadth,” he said.
Prelogar served on the Harvard Law Review and was an Ames Moot Court Competition finalist. As a semifinalist, she’d been awarded best oralist in an argument before Neil Gorsuch ’91, then a judge on the U.S. Court of Appeals for the 10th Circuit, an experience she credits as a “turning point” that gave her the confidence to believe she could litigate at the highest levels. Teammate Tejinder Singh ’08 remembers being awed by Prelogar’s ability to balance the demanding moot court competition with her other responsibilities. But “equally remarkable,” he said, was her willingness to take advice, find ways to laugh even during moments of high stress, and genuinely engage with other people’s ideas. “There are some people who may have comparable resumes, but those resumes come with substantial egos,” Singh said. “She does not work like that.”
After graduating, Prelogar clerked for Merrick Garland ’77, then a judge on the U.S. Court of Appeals for the D.C. Circuit; Justice Ruth Bader Ginsburg ’56-’58; and Justice Elena Kagan ’86. Harvard Law Professor Andrew Crespo ’08 worked with Prelogar in Kagan’s chambers during her first year on the Court. Crespo recalls that Kagan and Prelogar shared a penchant for long and lively conversations. Both could spend hours digging deep into whatever topic came up, be it a challenging area of law, the news of the day, or a March Madness bracket, he says.
“She is a lawyer’s lawyer to the bone. Hard, complicated, challenging problems are her happy space.”
Andrew Crespo
That “focused intensity,” Crespo said, is visible whenever Prelogar is faced with an especially difficult legal question. Like a runner who is happiest when a treadmill is cranked to the max, he says, she seems to relish grappling with legal issues that not only are intellectually demanding but also implicate especially thorny policy or moral questions. “She is a lawyer’s lawyer to the bone,” Crespo said. “Hard, complicated, challenging problems are her happy space.”
After clerking, Prelogar spent a few years in private practice before joining the solicitor general’s office as an assistant in 2014. She spent the next five years there, including a two-year detail to Robert S. Mueller III’s team investigating allegations of Russian interference in the 2016 election. She briefly returned to private practice in 2020 as a partner at Cooley, which she paired with teaching the Supreme Court and Appellate Advocacy Workshop at Harvard Law, until returning to public service as acting solicitor general following the inauguration of President Joe Biden. In 2021, Prelogar was appointed the 48th solicitor general, making her only the second woman, after Kagan, to serve in that role on a permanent basis.
For nearly a decade, Prelogar also volunteered with Singh to draft many of the fictitious cases that serve as the basis of the Ames Moot Court Competition. Again, she balanced those responsibilities with a demanding workload, stopping only when she became the acting solicitor general. As was the case in law school, Singh remained awed by Prelogar’s seemingly limitless work ethic. “To the extent it looks effortless, which is a talent of hers, people should realize it’s really not,” Singh said. “A lot goes into building a success like hers.”
At her confirmation hearing, Republican Sen. Chuck Grassley questioned Prelogar about the number of cases in which the solicitor general’s office, under her leadership, had changed its legal position after the 2020 presidential election. She responded that each change in position had occurred after careful consideration in consultation with each federal agency that had a stake in the matter. “We have a very well-established process in the solicitor general’s office of soliciting views far and wide,” she told the Senate Judiciary Committee. “Luckily I did not have to sit there on my own and try to figure it out.”
Prelogar has gotten the best possible result from a skeptical court by truly engaging in the art of persuasion, says Richard Lazarus.
According to those who have worked closely with Prelogar, she meant what she said. Principal Deputy Solicitor General Brian Fletcher ’06, who serves as the number two in the office, said she is “committed to making sure everyone in the department and government who’s interested in a case gets heard and feels like they get heard.”
That is not easy, given the volume of cases the office handles, Fletcher says, and particularly because the solicitor general, in contrast to those in most other legal government leadership positions, is an active litigator responsible for reviewing and editing briefs and presenting oral arguments. But less than 15 years out of law school, Prelogar came to the role with a deep well of knowledge and experience. Unlike many of her predecessors, she worked in the office for years before her appointment to the top job. “It’s clear that that shaped how she thinks about the office,” Fletcher said. “She very much comes at it with respect for the institutional role of the solicitor general’s office and the role the career lawyers here play.”
Prelogar has the added challenge of representing the Biden administration before a Supreme Court that is widely viewed as one of the most conservative in decades. Since her appointment, the Court has issued decisions that have attracted both praise and vehement criticism for reshaping decades of legal precedent on hot-button issues including abortion, affirmative action, and religious liberty.
University of Chicago Law School Professor John Rappaport ’06, who clerked with Prelogar for Justice Ginsburg, remembers her as an optimist who believed that the right argument, paired with sufficient hard work, could persuade a justice to change their mind. That optimism has likely been tested in recent years, says Rappaport. “It feels like the cases are less up for grabs than they used to be,” he said. “She’s a solicitor general appointed by a Democratic president facing a majority Republican-appointed Court, which predictably leans against the interests of her client. That has to be tough.”
Though most matters are argued by the office’s deputies and assistants, Prelogar herself tackles the trickiest, most headline-grabbing cases that make it to the Court. “You don’t get any layups as solicitor general,” explained Harvard Law Professor Richard Lazarus ’79, a previous assistant to the solicitor general who worked with Prelogar on the 2017 case Murr v. Wisconsin, where she appeared as an assistant to the solicitor general in a case involving environmental regulatory takings.
Lazarus was impressed by her skills as an advocate at the time, but he admits he “had no idea how good she really is” until he saw her take on the hardest cases that make it to the Supreme Court. “As solicitor general, it’s orders of magnitudes harder,” he said. “But Elizabeth is one of the very best I’ve seen, and that’s a very rarefied group.”
Prelogar has served as the face of the federal government in blockbuster cases such as Students for Fair Admissions Inc. v. President and Fellows of Harvard College, in which she urged the Supreme Court to let stand a lower court ruling in finding that Harvard’s admissions practices were lawful, though the Court later ruled that affirmative action in higher education is unconstitutional in most instances, and Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade. Prelogar’s job would not be easy even in front of a Supreme Court with six reliably progressive justices, Lazarus said, but it would be “a cakewalk compared to what she’s got right now.” Knowing that she is likely to lose most of the cases she argues, she has the nuanced and challenging job of trying to “lose well,” and encourage the Court to make narrow rulings that limit the overall reach of their decisions.
Lazarus believes Prelogar has succeeded at getting the best possible result from a skeptical court in most instances, winning even challenging cases such as Moore v. Harper, involving the independent state legislature theory, and Allen v. Milligan, a significant voting rights case in which the Court held, in a 5-4 decision, that Alabama’s congressional map likely violated the Voting Rights Act. She has done that, he says, by truly engaging in the art of persuasion. Some advocates fall into the trap of arguing with the justices, or proceed in a bullheaded fashion, failing to grapple with the questions posed by the justices or acknowledge the weaknesses of their arguments, Lazarus says. But Prelogar speaks with “a very credible voice and is very candid,” he explained. “She answers the questions. If something’s hard, she’ll acknowledge it’s hard.”
Moreover, Prelogar appears to think carefully about each justice’s individual concerns. Rather than treat the justices as a set of predictable or partisan votes, Lazarus said, Prelogar “assumes every vote is in play and will try to get them.” She does that by being a close listener during oral argument and deftly pivoting to areas that are likely to bear fruit, strategizing on her feet to pursue alternative arguments that may have been hardly addressed in the briefing if it appears that the justices may be persuaded on that point. And when she speaks, the justices listen. “She speaks for the third branch of government,” Lazarus said. “They take that seriously.”
And while nobody likes losing, Prelogar handles setbacks with a Zen attitude honed by life’s occasional disappointments, like being turned down for a much-sought-after fellowship or falling short of a professional goal. Those disappointments can feel “very major at the time,” Prelogar told the Bulletin, but they helped her “figure out how to regroup and improve and set myself up for greater success next time, and exposed me to the disappointment that all lawyers face when you don’t have a 100% win rate, which is impossible.”
Prelogar also stresses the importance of mooting. The night before each Supreme Court argument, she prepares by facing her most important critics: her two preteen sons, who listen to her prepared introduction over family dinner and rate her on a scale of one to 10. Thankfully, “there’s pretty good grade inflation in my family,” she confessed.
Prelogar has already gained enormous experience in just over two years in her role representing the United States in the Supreme Court. Though it is too early to speculate on what is next for her, wherever she goes next, Crespo says, her presence will continue to be felt among advocates who appear before the high court. “She is now, and will be for as long as she wants, one of the pillars of the Supreme Court bar,” Crespo said. “She could be a defining force for decades.”