The Solicitor Generalâ•Žs Dominance of Amicus Oral Argument
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Vanderbilt Law Review Volume 74 Issue 3 April 2021 Article 4 4-2021 The Loudest Voice at the Supreme Court: The Solicitor General’s Dominance of Amicus Oral Argument Darcy Covert Annie J. Wang Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Supreme Court of the United States Commons Recommended Citation Darcy Covert and Annie J. Wang, The Loudest Voice at the Supreme Court: The Solicitor General’s Dominance of Amicus Oral Argument, 74 Vanderbilt Law Review 681 (2021) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol74/iss3/4 This Article is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. The Loudest Voice at the Supreme Court: The Solicitor General’s Dominance of Amicus Oral Argument Darcy Covert* Annie J. Wang** The Solicitor General (“SG”) is often called the “Tenth Justice,” a title that captures his unique relationship with the Supreme Court and his independence from the executive branch. No phenomenon better reflects this relationship than the Court’s practice of permitting amici to participate in oral argument. Although amicus oral argument is nominally available to all litigants, the modern Court grants this privilege almost exclusively to the SG. Scholars and Court watchers have long argued that this practice is justified because the SG uses it to pursue the rule of law and an objective sense of “justice.” This Article challenges that account. The SG’s dominance of amicus oral argument is a relatively recent phenomenon. In the early 1900s, the SG requested amicus oral argument almost exclusively to defend federal statutes or federal agency action. During this time, the Court granted all his amicus oral argument requests. But, over time, SGs increasingly entered political cases with only tenuous connections to the federal government. During the late 1980s, the Court became skeptical of the SG’s political independence; in response, it denied seventeen percent of his amicus oral argument motions, and individual Justices criticized him in internal memoranda. Thirty years later, the Court permits the SG to argue as an amicus in almost any case he wants, even though he * Staff Attorney, King County Department of Public Defense; Yale Law School, J.D. ** Yale Law School, J.D. Both authors contributed equally. This project was supported by Yale Law School’s Oscar M. Ruebhausen Fund for Research and approved under IRB # 2000025340. Replication data is available at osf.io/he9gs. We are grateful for feedback from Michael Coenen, Margaret Meriwether Cordray, Linda Greenhouse, Leah Litman, Alex Mechanick, Kate Shaw, Nicholas R. Parrillo, and Michael Solimine; for assistance from the librarians and archivists at the Library of Congress and National Archives; and for the generosity of the Supreme Court litigators who agreed to speak with us. Finally, we thank Justin Driver and Lincoln Caplan for their inestimable guidance and support. 681 682 VANDERBILT LAW REVIEW [Vol. 74:3:681 increasingly weighs in on politically charged cases with de minimis implications for the federal government. This new equilibrium has profound consequences. By permitting the SG to be heard any time he asks, the Court systematically biases the perspectives that it hears. This bias undermines due process principles and the adversarial system, and it ignores the Court’s own history and rules. We offer a proposal for reform. INTRODUCTION ............................................................................... 683 I. UNDERSTANDING THE AMICUS ROLE, ORAL ARGUMENT, AND THE OSG ...................................................................... 688 A. The Amicus Role ...................................................... 688 B. Amicus Oral Argument ............................................ 689 C. The Court’s Foremost Amicus: The OSG ................. 693 II. DOCUMENTING AMICUS ORAL ARGUMENT PRACTICE AT THE SUPREME COURT .......................................................... 695 A. Quantitative Account ............................................... 695 1. The Rise of Amicus Oral Argument ............. 696 2. The OSG’s Dominance of Amicus Oral Argument ............................................. 698 B. Qualitative Account ................................................. 704 1. 1889 Through 1930s ..................................... 705 2. 1940s Through 1960s .................................... 708 3. 1970s Through 1990s .................................... 713 4. 2000 Through 2019 ....................................... 719 III. JUSTIFYING THE OSG’S OUTSIZED AMICUS ORAL ARGUMENT PARTICIPATION ................................................. 723 A. The OSG’s Oral Argument Expertise ....................... 723 B. The OSG’s Access to Federal Agencies ..................... 725 C. The SG as the Tenth Justice .................................... 729 IV. DECIDING WHO SHOULD BE HEARD .................................... 736 A. When Amici Should Be Heard ................................. 740 1. Standard 1: An Amicus with a Concrete Interest Who Provides New Legal Reasoning ........................................... 741 2. Standard 2: An Amicus Who Raises an Entirely New Legal Argument ..................... 742 B. Application to the OSG ............................................ 743 1. Cases Without a Concrete Federal Interest ............................................ 745 2. Cases Against the Federal Interest ............. 747 2021] THE LOUDEST VOICE AT THE SUPREME COURT 683 3. Cases Without New Reasoning .................... 747 C. Application to Other Parties .................................... 748 1. Criminal Cases ............................................. 749 2. Cases Involving State Interests ................... 751 3. Cases Vindicating the Federal Interest ....... 752 CONCLUSION ................................................................................... 754 INTRODUCTION In April 2020, the United States Supreme Court did something it had not done in nearly a decade: it denied a motion by the Office of the Solicitor General of the United States (“OSG”) to participate in oral argument as amicus.1 While many litigants file amicus briefs at the Court, amicus oral argument is a rare occurrence for every litigant except the OSG. Between the 2010 and 2019 Terms, the Court granted only fifteen of forty-three motions for amicus oral argument by litigants other than the OSG.2 During that time, it granted 306 amicus oral argument motions—all but one—by the OSG. April’s denial, which was for an argument set in the 2020 Term, was the first since 2011. To most Supreme Court litigators and other Court watchers, the Solicitor General’s (“SG”) dominance of amicus oral argument is taken as a matter of course.3 The SG directs all appellate litigation involving the federal government and represents it before the Supreme Court.4 The SG’s relationship with the Court is so unique that he5 is often called the “Tenth Justice.”6 This title captures the SG’s long-standing, self- 1. Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 140 S. Ct. 2665 (mem.) (2020). 2. Throughout this Article, we define a “motion” as a request to argue in a “case,” where cases are organized by citation rather than by docket number. In many instances, cases ultimately consolidated into a single opinion were also consolidated for oral argument. See, e.g., Brown v. Bd. of Educ., 347 U.S. 483 (1954) (consolidating cases from Kansas, South Carolina, Virginia, and Delaware). As a result, counting each motion by docket number would artificially inflate the frequency of amicus oral argument. By the same token, if a party requests oral argument in multiple cases in a single motion, we consider that multiple motions (where the number of motions is equal to the number of resulting opinions). 3. See, e.g., Margaret Meriwether Cordray & Richard Cordray, The Solicitor General’s Changing Role in Supreme Court Litigation, 51 B.C. L. REV. 1323, 1331 (2010) (suggesting that Supreme Court procedure encourages SG participation as amicus curiae); Patricia A. Millett, We’re Your Government and We’re Here to Help: Obtaining Amicus Support from the Federal Government in Supreme Court Cases, 10 J. APP. PRAC. & PROCESS 209, 227 & n.33 (2009) (discussing the role the OSG can play in advocacy). 4. Cordray & Cordray, supra note 3, at 1326. 5. With the exception of Elena Kagan, every SG has been male. See OFF. OF THE SOLIC. GEN., About the Office, DEP’T OF JUST., https://www.justice.gov/osg/historical-bios (last visited Feb. 4, 2021) [https://perma.cc/4F5S-GHFC]. Therefore, we use the pronoun “he” to refer to the SG. 6. See generally LINCOLN CAPLAN, THE TENTH JUSTICE: THE SOLICITOR GENERAL AND THE RULE OF LAW (1987). 684 VANDERBILT LAW REVIEW [Vol. 74:3:681 proclaimed commitment to “justice”—“a voice that speaks on behalf of the rule of law”7—rather than to victory in any given case. This Article challenges this conventional account. Far from being static, the SG’s relationship to the Court has evolved dramatically over the last century. No practice better reflects this dynamic than amicus oral argument, which provides a rare signal of which litigants the otherwise-opaque Court favors. Over the last twenty years, the OSG has argued in 69%–88% of the Court’s cases; over half of those arguments were as an amicus. Our comprehensive historical analysis