U.S. Justice Department headquarters in Washington, D.C. Credit: Mike Scarcella/ The National Law Journal

The U.S. Justice Department's request that the Supreme Court consider sanctions against lawyers who advocated for an immigrant teenager at the center of an abortion case has raised questions about the government's motivation and threatened to jeopardize the reputation of the solicitor's office before the justices.

Noel Francisco, the solicitor general, on Nov. 3 asked the justices to vacate an unsigned Washington federal appeals court ruling that said U.S. health and immigration officials could no longer block an undocumented teenager in Texas from having an abortion.

Francisco's petition accused the teen's counsel—including lawyers at the American Civil Liberties Union—of misleading the government about the scheduling of the teen's abortion. Those alleged misrepresentations, according to the solicitor's office, prevented the government from appealing the D.C. Circuit decision to the Supreme Court before the abortion took place.

Solicitor General Noel Francisco. Credit: Diego M. Radzinschi/ The National Law Journal

Francisco wrote in the petition that “in light of the extraordinary circumstances of this case, the government respectfully submits that this court may wish to issue an order to show cause why disciplinary action should not be taken against respondent's counsel—either directly by this court or through referral to the state bars to which counsel belong—for what appear to be material misrepresentations and omissions to government counsel designed to thwart this court's review.”

Former Justice Department attorneys, representing various ideological backgrounds, called the government's action in the Supreme Court “extraordinary” and said they had no memory of a similar Supreme Court petition, filed by the solicitor's office, that charged unethical conduct by opposing counsel. William Suter, a former clerk of the court for more than 22 years, said he did not recall any similar sanctions request filed by a solicitor general. The Supreme Court itself has initiated disciplinary action on its own volition in rare cases.

Former President Barack Obama-era Justice Department lawyer Martin Lederman this week described Francisco's filing as “fundamentally a press release for an audience other than the justices of the Supreme Court itself.”

“These are extremely serious charges, including against fellow members of the Supreme Court Bar, and the suggestion that the court take steps to trigger disciplinary proceedings is highly irregular, if not unprecedented in a petition,” Lederman, a Georgetown University Law Center professor, wrote this week at the blog Balkinization. “Yet, in keeping with his practice in rest of the petition, the solicitor general does not offer a single authority, or legal citation, in support of his inflammatory suggestions of attorney wrongdoing.”

The Justice Department did not immediately respond to a request for comment about Francisco's petition, and the ACLU had not yet filed its response in the Supreme Court.

David Cole, national legal director of the ACLU, told the National Law Journal on Wednesday: “We do plan to oppose the petition, which we consider baseless.” The ACLU has 30 days from the docketing of Francisco's petition in which to file its brief in opposition.

Walter Dellinger, a former acting solicitor general in the Clinton administration, said Francisco's petition, should the court raise concerns, could harm the solicitor general's relationship with the court. “They provide the court with no basis for determining that there's been an ethical violation,” Dellinger said.

A persuasive response from the ACLU to the government could cast the Justice Department's petition as primarily politically motivated, several lawyers said, and that could damage the relationship of trust the court has with the solicitor general, often called the “10th justice.”

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A Petition 'Lashing Out in Anger'

Former Justice Department attorneys, speaking anonymously in deference to relationships at the DOJ and at the high court, also raised questions about whether the justices might perceive the government's brief as overtly political—and what the consequences of that perception might be. One former DOJ lawyer said the Justice Department's filing came across as “lashing out in anger.”

It's clear the Justice Department—under the command of U.S. Attorney General Jeff Sessions—was fuming in the days after the girl's abortion. Sessions, in an interview with Fox News on Oct. 27, expressed dismay about the circumstances that led to the teenager's abortion.

The news of the girl's abortion was a “surprise” to the Justice Department, according to Sessions. He said the girl's lawyers moved ahead of a schedule they'd communicated to the government. The attorneys for the teenager, Sessions said, committed “a breach of the kind of confidence a lawyer should have with one another and we're very upset about it. And I think it's a serious problem, should not have happened and we're disturbed about it, I've got to tell you.”

He added: “I'm very disappointed these lawyers were able to take the client around the law to avoid a court hearing at least that we were filing.”

As women's rights groups applauded the ACLU, observers on the right and anti-abortion groups criticized not only that the girl's medical procedure happened—but also that the Justice Department had not stopped it.

Texas Attorney General Ken Paxton on Oct. 25 assailed the Justice Department for having “failed to appeal to the United States Supreme Court a ruling allowing the abortion.” His office included a link to the amicus brief he said he would have filed in the Supreme Court had the Solicitor General's Office taken the case there.

Dellinger and other lawyers questioned why Francisco's office filed the government's petition nine days after the D.C. Circuit decision. The solicitor's office would have had three months—under Supreme Court rules—to take the dispute to the justices.

The lower court injunction had run its course and the teen had obtained an abortion. Lawyers who've read the petition noted that it spends little time on any reasons the court should grant review and, instead, focuses largely on the alleged misrepresentations by the teen's lawyers. “It's a very hasty piece of work,” Dellinger said.

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The Justice Department's Options

The action in the D.C. Circuit was swift-moving, but the Justice Department had various steps it could have taken in the teen's case before the D.C. Circuit's decision and immediately afterwards.

The D.C. Circuit on Oct. 20, in a divided panel ruling, refused to allow the teenager to leave custody immediately to receive the abortion. That weekend, the ACLU team for the teenager urged the full appeals court to take up the case. The D.C. Circuit, after receiving the full-court petition, directed the government to respond.

On Oct. 24, the full appeals court—in another divided ruling—overturned the timeline and plan the panel judges had established. The en banc decision put in motion the ability of the girl to have the medical procedure completed.

Francisco's office would have known there was a possibility the full D.C. Circuit—10 judges, with a Democrat-appointed majority—could have overturned the panel decision. The possibility of losing in front of the full D.C. Circuit meant the office might have prepared an emergency application to be presented to the justices. That application would have asked the court to block enforcement of the D.C. Circuit's order. The girl's abortion, then, could have been held up for a second time.

The D.C. Circuit ruled 6-3 for the girl's lawyers, with one judge recused.

“They had to know there was a material chance they would lose,” one former Justice Department lawyer said. “They knew there was an extremely expedited schedule and further indication the D.C. Circuit would act very quickly. I think the first thing I would have done is get those [emergency] papers ready.”

Another former lawyer said the swift-moving action in the D.C. Circuit—and the unpredictability there—could have hindered planning. “They didn't know the D.C. Circuit was going to rule as quickly as it did. They would have had to file a significant document with the Supreme Court. It wasn't some 10-page document you could write off the top of your head,” the lawyer said.

Besides the emergency application for a stay in the Supreme Court, the Solicitor General's Office could have sought an administrative stay—in the D.C. Circuit—for 24 hours to give it time to prepare an application and petition. These stays are not rulings on the merits but, rather, keep in place the status quo as lawyers prepare to present arguments.

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Career DOJ Lawyers Missing from SCOTUS Petition

The solicitor general's brief was notable for another reason beyond its rarity: There were no career solicitor general assistants on the cover sheet. It is unusual for a petition by the solicitor general not to have the name of an assistant on it. “The oddity of the petition begins on the cover page,” Lederman, formerly a top lawyer at the Office of Legal Counsel, wrote in the Balkinization blog post.

Lederman posited two theories—either the political staff, led by Francisco, declined to assign the brief to a career lawyer. (One attorney described this as the office providing “cover for those folks.”) Or, the other option, Francisco assigned the brief to a career lawyer who refused to put his or her name on it.

Chief Justice John Roberts Jr. Credit: Diego M. Radzinschi/ The National Law Journal

The Supreme Court requires four votes to grant a petition for review. Three sitting justices are veterans of the Solicitor General's Office: Chief Justice John Roberts Jr. was principal deputy solicitor general from 1989 to 1993 in the George H.W. Bush administration; Justice Elena Kagan was U.S. solicitor general during the Obama administration from March 2009 until July 2010; and Justice Samuel Alito Jr. was an assistant to the solicitor for four years in the Reagan administration.

“On the one hand, the chief justice would tend to give significant credence to the filing by a solicitor general making an accusation like this precisely because it is so unusual,” said one former DOJ lawyer. “On the other hand, it is an incendiary charge and the office is asking the court to get into the middle of an incendiary case. Pulling the court into the middle of this controversy now—one reaction might be: 'Why on earth are you throwing this into our lap?'”

If there were any internal disagreement or tension over the filing of the Justice Department's petition, it would not have been the first such instance inside the Sessions-led solicitor's office.

The NLJ reported in September that Sessions, over the reluctance of his top lawyers, directed the filing of an amicus brief in one of the term's most controversial cases: Masterpiece Cakeshop v. Colorado Civil Rights Commission. The government has disputed there was any tension over the filing of the brief.

The Justice Department file the brief in support of a Colorado baker who refused on religious grounds to make a wedding cake for a same-sex couple. The ACLU represents the gay couple in the high court.

Francisco and Cole, of the ACLU, are expected to face each other Dec. 8 in arguments in Masterpiece Cakeshop.

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