Elizabeth B. Prelogar, the Biden administration’s solicitor general who is responsible for arguing before the U.S. Supreme Court, spoke to an audience of Colorado attorneys on Saturday about the challenges of trying to persuade a conservative-majority court to adopt the federal government’s view of the law in high-stakes cases.

Prelogar acknowledged she has argued positions that faced “tremendous headwinds,” including in Dobbs v. Jackson Women’s Health Organization, where the Supreme Court overturned longstanding federal protections for abortion, and Students for Fair Admissions v. Harvard, which curtailed colleges’ ability to account for race in admissions decisions.

Those losses were “really just devastating on a personal level, and on a level of looking at our society and constitutional structure,” she said. “But I have never argued a case where I thought it was entirely hopeless and there was no room for effective advocacy.”

Prelogar spoke at the Colorado Women’s Bar Association’s convention at The Hythe luxury resort in Vail. She was interviewed by Court of Appeals Judge Jaclyn Casey Brown on subjects ranging from work-life balance to the mechanics of representing the federal government in court.

“You are in a fairly liberal administration right now and you are facing a court that is, by many measures, the most conservative court in a very long time,” Brown said. “You have to know some of the positions you are taking have a lower chance of prevailing than others.”

Prelogar responded that she hopes her arguments can “mitigate the effects” of an undesirable ruling, either by narrowing the court’s holding or by making certain exceptions to the rule.

Even when facing a skeptical court, her office needs to “ensure we are putting forward the best argument we can to support our vision of the Constitution. And that is no small thing.”

Prelogar has led the solicitor general’s office since the beginning of the Biden administration and is only the second woman to do so. To date, she has argued high-profile cases pertaining to domestic abusers’ access to firearms, the Voting Rights Act and President Joe Biden’s unsuccessful attempt at forgiving student loan debt.

In addition to Supreme Court appearances, Prelogar also authorizes the U.S. government’s appeals in litigation and consults with agencies on rulemaking.

Prelogar did not address the various scandals surrounding current members of the Supreme Court, most recently the revelation that Justice Samuel A. Alito Jr. flew an upside-down flag at his home after the 2020 election, which judicial ethics experts characterized as an improper appearance of partisanship.

Instead, alluding to political partisanship, Brown asked Prelogar to address the perception that the solicitor general “just does the president’s bidding.”

“We represent the United States. We’re not the president’s lawyer,” Prelogar responded, adding that her office also defends the actions of Congress.

She mentioned that on occasion, she has determined it is in the interests of justice to abandon the federal government’s previous position in a case, for which she received criticism early in her tenure during a criminal appeal involving sentence reductions for repeat drug offenses.

“It reflects that the point of litigating on behalf of the United States is not always to win at all costs or advance whatever position is going to secure victory in that particular case, but to take stock of the broader array of interests,” Prelogar said.

Prelogar spoke about her experience clerking for three high-profile members of the judiciary: now-Attorney General Merrick Garland, the late Justice Ruth Bader Ginsburg and Justice Elena Kagan, who preceded Prelogar as the first female solicitor general.

“Justice Kagan writes for the broader world. She does not just write for lawyers,” Prelogar said. “You pick up any opinion or dissent from her and it can be understandable by your average person on the street and that’s important to her.”

Prelogar also addressed statistics showing female lawyers are underrepresented among those arguing before the Supreme Court, a pattern that is similarly present in Colorado’s state appellate courts. She said private law firms specifically need to work on increasing opportunities for women, and that clients should consider who they want representing their interests before the nation’s highest court.

“In the Supreme Court, there is a pretty insular bar and often opportunities are given to people who have repeat experience,” Prelogar said. “But there are so many talented lawyers out there who haven’t had the opportunity to give their first Supreme Court argument yet. And if given the chance, they would shine.”

Brown asked Prelogar what she might pursue after she is no longer solicitor general. Prelogar acknowledged it was “hard in an election year not to be thinking about the future.”

“Whatever I do next I want to work on issues that I find meaningful and impactful,” she said, specifically mentioning democracy and voting rights. 

The bar association’s conference will continue through Sunday. On Friday, the group presented its “trailblazer” award to U.S. District Court Judge Charlotte N. Sweeney, the first openly gay federal judge in Colorado.