I recently published a Comment in The Yale Law Journal criticizing the Solicitor General’s Office for petitioning for Supreme Court review in as few as fifteen cases per year. The Comment questions whether the Office is fulfilling its duty of zealous advocacy when it abandons so many of the federal interests rejected by the courts of appeals each year. It also argues that the Office’s proffered justifications for its stinginess in petitioning (its credibility and resources) don’t hold water.
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In response to the Comment, a friend highlighted an aspect of the Solicitor General’s practice that is even more anemic: “uninvited” cert.-stage amicus briefs. The SG, like any third party, can file amicus briefs alongside the parties’ cert. papers. The SG calls these briefs “uninvited” because, since 1957, the Court has regularly requested the SG’s views during the cert. process. In other words, in cases in which the SG hasn’t already filed an uninvited amicus brief, the Court may invite the SG to weigh in. No one has paid much attention to uninvited SG briefs, perhaps because the SG so rarely submits them. According to the SG’s online brief bank, the Office has filed about one every other year during the last decade.
Why is this surprising? For one thing, when the Solicitor General has filed uninvited cert.-stage briefs, he has always gotten his way (save one freak incident in 2008 when the Court lacked quorum to act on the petition). That’s an enviable batting average compared to the low odds of a grant for the average petition. (A side note: cert.-stage amicus briefs pushing a cert. denial are exceedingly rare and, empirically, counterproductive. The SG has not filed such a brief (uninvited) since 1999.)
The SG’s success with these briefs may not come as a shock given (1) the empirical evidence that, all else equal, a cert.-stage amicus brief ups the odds of a grant and (2) the SG’s uniquely influential relationship with the Court. But if the SG essentially wields the power to put a case on the Court’s docket, why doesn’t he use it more often?
There is no shortage of petitions that the SG could support of its own volition. As Tony Mauro has reported (subscription req’d), the Court is asking more frequently for the views of the Solicitor General on cert. petitions—28 times in the most recent Term. In each of those cases, the Court has identified a federal interest, and in some number of them, the Solicitor General will recommend a cert. grant. In those cases, why did the SG sit on his hands and wait for the Court’s invitation? (More on that in a bit.) What’s more, those invitations indicate an expanding appetite for the government’s views that the SG could take advantage of with more uninvited briefs.
Perhaps most anomalous is the SG’s voracious participation as an amicus at the merits stage. In a recent law review article, Margaret and Richard Cordray (yes, that Richard Cordray) demonstrate that over the last 20 years, the Solicitor General’s Office has diminished its presence at the cert. stage while dramatically expanding its focus on the merits stage. Nowadays the SG’s Office presents oral argument in over three-quarters of the Court’s merits cases each Term and does so more frequently as an amicus than as a party. In over half of the cases in the most recent Term in which the SG supported the petitioner on the merits, the SG had said nothing—invited or uninvited—at the cert. stage. Did a federal interest suddenly materialize once cert. was granted? (An interest beyond the Office’s own prerogative in getting argument experience for its lawyers, of course.)
There are still other reasons to question the SG’s disinterest in voluntary cert.-stage participation. It is not hard to find examples of cases in which the United States participated unsuccessfully as an amicus in the court of appeals and then filed nothing when the losing party petitioned for cert. Also, while it is empirically true that cert.-stage amicus briefs have more sway than merits-stage amicus briefs, the SG’s activity has shifted in the opposite direction. In addition, as I note in my Comment, there is evidence that the SG’s practice of filing fewer government cert. petitions may be backfiring: to get its fill of cases in which the United States is a party, the Court is granting more cases in which the government is the respondent, generally a weaker position for any litigant. Perhaps here, too, there are unintended consequences: by not flagging the best vehicles for certain federal interests, the SG leaves the Court to grant cases that are not as favorable for the government’s position on those issues. Politics may add another reason to scratch one’s head about this. A few years ago, I wrote in Slate that, in the cert.-stage amicus game, “[t]he private groups and advocacy organizations that most frequently urge the court to take a case are overwhelmingly pro-business, anti-regulatory, and ideologically conservative.” One might have expected the Obama Administration to have some impulse to counter that imbalance.
I’ve never heard anyone from the SG’s Office speak to this issue, so I can only guess at a few explanations they might give. One is that, by waiting for the Court’s invitation to weigh in on a cert. petition, the SG’s Office saves itself the time of screening cert. petitions as they’re filed. Though that may be more “efficient,” it doesn’t sound much like zealous advocacy of the government’s interests. The Court cannot be expected to ask about every petition in which there is an important federal interest—it takes a vote of four Justices to call for the SG’s views—and by waiting, the SG fails to raise the profiles of many petitions that the Court will otherwise ignore. Even so, private litigants could probably do a better job of bringing their cert. petitions to the SG’s attention.
Another explanation might be that the SG’s Office doesn’t want to take attention away from its own cert. petitions. There are a couple of reasons to doubt that explanation, though. Judging from recent petitions, the cases in which the United States is the petitioning party are generally different in kind from the cases the SG participates in as an amicus. The United States is the petitioner in only a subset of the cases presenting federal issues, a subset most commonly consisting of criminal, immigration, and agency proceedings. Moreover, the cert. process is not a zero-sum game: just because the Court grants a non-SG petition does not imply that the odds for SG petitions are diminished. In fact, the Cordrays (in a different paper) have found that the SG’s Office has a substantial and independent effect on the size of the Court’s docket. That is, if the SG recommends more cert. grants, the Court responds with more cert. grants.
If I had to guess what’s actually going on, it would be that the SG’s Office is trying, at all costs, to protect its reputation with the Court for advancing only “certworthy” cases. (I explain in my Comment why I think the Office is overreading that mission.) When it comes to cert.-stage amicus briefs, I suspect the Office is perfectly happy to let the Court tell it what the Court thinks is certworthy via invitations to participate, rather than to go out on a limb and recommend a cert. grant when the Court might disagree. But again, wait-and-see doesn’t exactly sound like zealous advocacy.
Whatever the explanation, it is hard to conclude from the numbers that the SG is following an optimal strategy for advancing the federal government’s interests at the Court. Cert.-stage amicus briefs are an area in which the Solicitor General could have profound impact, and yet he lets the opportunity go almost completely untapped.