Reexamining the Role of the Solicitor General in Filing Amici by RICHARD L

Former Solicitors General Kenneth Starr, 1989-1993 (left); Drew Days, 1993-1996 PATRICK GILBERT/LEGAL TIMES GILBERT/LEGAL PATRICK (center); and Walter Dellinger, 1996-1997 (below). STACEY CRAMP/LEGAL TIMES CRAMP/LEGAL STACEY JAY MALLIN/AJS JAY

Amicus curiae or amicus praesidentis?* Reexamining the role of the solicitor general in filing amici by RICHARD L. PACELLE, JR. There are limits to the impact that the president and political forces have

he Office of the Solicitor in influencing the amicus position adopted eral to serve as a first-line General (OSG) shares a by the solicitor general gatekeeper for the Supreme Tsymbiotic relationship Court and to say ‘no’ to many with the United States Supreme Court. The office and government officials who present plausible claims of the Court have developed “a tradition of mutual trust legal errors in the lower courts.”5 The SG also “focuses and respect.”1 As former Solicitor General Kenneth and directs the development of law,” helping the justices Starr noted, “There is a unique relationship between to impose stability on doctrine.6 The OSG appears before the two branches that is valued and treasured and is a the Court more than any other litigant, thus its attorneys factor that counsels care, caution, and effective lawyer- are quite familiar with the predilections of individual jus- ing.”2 While analysts may dispute the reasons why,3 virtu- tices and the Court. ally everyone recognizes the excellence and success of Another important function of the solicitor general is the Office of the Solicitor General.4 informational. Oral arguments and written briefs are The solicitor general’s primary responsibilities to the good places for justices to get information and signals.7 Court are to screen petitions scrupulously to keep many The Court, however, is bombarded with information. Lit- off the Court’s crowded docket and to prepare briefs of igants may fabricate or exaggerate circuit conflicts or mis- the highest quality. Former Solicitor General (SG) Wade represent the impact of precedent.8 The SG seeks to McCree argued that “It is the duty of the Solicitor Gen- provide the justices with accurate and balanced informa-

*This loosely translates to Friend of the President. There is no word in Briefs by the Solicitor General During the Warren and Burger Courts: A Research Note, Latin for president. 41 W. POL. Q. 135 (1988); Rebecca Deen, Joseph Ignagni & James Meernik, I would like to thank Professor Bryan Marshall for his assistance and help- The Solicitor General as Amicus, 1953-2000: How Influential? 87 JUDICATURE 60 ful suggestions, Professors Jeff Yates, Rebecca Deen, James Meernick, and (2003); Kevin McGuire, Explaining Executive Success in the U.S. Supreme Court, especially Professor Joseph Ignagni for comments on a previous version. My 51 POL. RES. Q. 505 (1998). research assistant Stephanie Lindley helped to gather the data. Fenton Mar- 4. Salokar, supra n.3; Robert Scigliano, THE SUPREME COURT AND THE PRES- tin helped with the data entry and about a thousand other things. I want to IDENCY (New York: Free Press, 1971); Kristen Norman-Major, The Solicitor Gen- thank those members of the Office of the Solicitor General who graciously eral: Executive Policy Agendas and the Court, 57 ALB. L. REV. 1081 (1994); took time from their schedules to discuss the office with me. Thanks to Dr. Steven Puro, The United States as Amicus Curiae, in S. Sidney Ulmer, ed. Craig Martin for the help with Latin. I apologize to my high school Latin COURTS, LAW, AND JUDICIAL PROCESSES (New York: Free Press, 1981); Pacelle, teachers for any unnecessary liberties I took with the language. supra n.2. Michael Bailey, Brian Kamoie & Forrest Maltzman, Signals from the 1. Richard Wilkins, An Officer and an Advocate: The Role of the Solicitor Gen- Tenth Justice: The Political Role of the Solicitor General in Supreme Court Decision eral, 21 LOY. L.A. L .REV. 1167, 1179-80 (1988). Making, 49 AM. J. POL. SCI. 72 (2005). 2. Richard Pacelle, BETWEEN LAW AND POLITICS:THE SOLICITOR GENERAL AND 5. Wilkins, supra n.1, at 1179. THE STRUCTURING OF RACE, GENDER, AND REPRODUCTIVE RIGHTS LITIGATION 44 6. Id. at 1179-80. (College Station, Texas: A&M University Press, 2003). 7. Bailey, Kamoie & Maltzman, supra n. 4. 3. Rebecca Salokar, THE SOLICITOR GENERAL:THE POLITICS OF LAW 8. H.W. Perry, DECIDING TO DECIDE:AGENDA SETTING IN THE U.S. SUPREME (Philadelphia: Temple University Press, 1992); Jeffrey Segal, Amicus Curiae COURT (Cambridge: Harvard University Press, 1991).

Volume 89, Number 6 May-June 2006 JUDICATURE 317 tion and assure that the briefs main- ume of litigation and the fact that internal and external perceptions of tain a high level of professionalism. the office argues on behalf of the the OSG more striking than in the In short, as James Cooper argued, same client in every case mean that use of the amicus curiae brief. Those the solicitor general “is a brand the SG must pay close attention to discrepancies suggest the need to name” that insures quality.9 the Supreme Court. reexamine the role of the solicitor The SG decides which of the cases The need to balance obligations to general in filing amicus briefs. The the government lost in the district the Court, the president, Congress, conventional wisdom says that if the courts and the courts of appeals agencies, and the law complicate the solicitor general files an amicus brief should be appealed. The OSG also calculations of the solicitor general. at the certiorari stage, the Supreme assumes full control over government Analysts have been concerned with Court is more likely to grant the peti- cases appealed to the Supreme Court. unraveling the relative influence of tion and accept the case.14 At the Though these represent an impres- the different forces in the office’s merits stage, the prevailing wisdom is sive array of powers and give the solic- environment. There is a significant that the amicus curiae brief is the itor general a major voice in the difference in the perceptions of the opportunity for the president to use construction of judicial policy, the Office of the Solicitor General the SG to push the administration’s influence of the office extends even between those who work in the agenda.15 While both of these further. The SG often enters cases in office12 and those who study the insti- notions merit attention, this study which the government is not a party tution.13 The latter are inclined to addresses the former and concen- through an amicus curiae brief.10 This emphasize the political nature of the trates on the latter. permits the solicitor general to influ- OSG, while the former concentrate At the case selection stage, the jus- ence the structure of doctrine and on the legal requirements attendant tices have to evaluate roughly 8,000 advocate a position even though the to the office. In many ways, this is petitions each year in choosing the government is not involved in the par- similar to the differences between cases to decide. Studies have posited ticular case.11 Over time, the office has the way that justices characterize that the justices use cues or signals earned a high degree of credibility their work and how many analysts that suggest which petitions deserve with the justices. One manifestation explain Supreme Court decision close attention. Virtually every study of that credibility is that the Court making. Perhaps, like the Supreme identifies the presence of the solicitor will, on a number of occasions, “Call Court, the truth lies somewhere in general as petitioner as the most for the Views of the Solicitor General” the middle. This study looks at the important cue.16 The proof is demon- (CVSG). In these instances, the Court role the solicitor general plays in fil- strated annually by the fact the solici- formally invites the SG to express its ing amicus briefs and evaluates the tor general has the highest percentage views on the case before it. conventional wisdom about the use of cases accepted of any litigant. The significance of the Supreme of such briefs. The amicus curiae Thus, when Caldiera and Wright Court as a policy maker, the use of lit- brief presumably provides the fewest discovered that when the solicitor igation as a mechanism for influenc- constraints for the SG and, thus, the general filed an amicus brief at the ing policy, and the sheer volume of best opportunity to advocate a posi- certiorari stage the Court was much government litigation magnify the tion for the president. more likely to grant the petition, it potential influence of the solicitor became part of the conventional wis- general. That potential also exposes The conventional wisdom dom. It was not typical for litigants or the office to a variety of different In no area of the solicitor general’s the solicitor general to submit an pressures. The solicitor general plays work are the differences between the amicus brief at the certiorari stage, a critical role in translating the policies of the government, the presi- 9. James Cooper, “The Solicitor General and Erwin Griswold, OULD FIELDS, NEW CORNE:THE dent, and the executive branch (and Federal Litigation: Principal-Agent Relationships PERSONAL MEMOIRS OF A TWENTIETH CENTURY LAWYER they may not be the same thing) into and the Separation of Powers” (Ph.D. Disserta- (St. Paul: West, 1992); Rex Lee, Lawyering for the Gov- tion, Indiana University, 1993, at 70). ernment: Politics, Polemics & Principle, 47 OHIO ST. L. J. litigation. 10. An amicus curiae, or “friend of the court,” 591 (1986). See a variety of quotes from interviews brief is filed by a group that is not party to the with members of the office in Pacelle, supra n.2. As a presidential appointee, the case, but will be affected by the outcome. Such 13. Jeffrey Segal, supra, n.3; Jeffrey Segal, SG might be expected to carry water briefs provide the SG with the opportunity to Supreme Court Support for the Solicitor General: The expand or contract issues in the case, provide Effect of Presidential Appointments, 43 W. POL. Q. 137 for the administration on the impor- expertise, and offer the Court an informal tally of (1990); Salokar, supra n.3; Norman-Major, supra tant issues of the day. At the same public opinion. Richard Pacelle, THE TRANSFOR- n.4; O’Connor supra n.11; Puro, supra n.4; Jeffrey time, legislation often needs to be MATION OF THE SUPREME COURT’S AGENDA:FROM Yates, POPULAR JUSTICE:PRESIDENTAL PRESTIGE AND THE NEW DEAL TO THE REAGAN ADMINSTRATION 31 EXECUTIVE SUCCESS IN THE SUPREME COURT interpreted in court and the SG (Boulder: Westview, 1991). (Albany: SUNY Press, 2002). 11. Karen O’Connor, The Amicus Curiae Role of 14. Gregory Caldeira & John Wright, Organized would be expected to argue the posi- the U.S. Solicitor General in Supreme Court Litigation, Interests and Agenda Setting in the U.S. Supreme Court, tion from Congress’ perspective. 66 JUDICATURE 256 (1983). 82 AM. POL. SCI. REV. 1109 (1988). Many of the cases come from an 12. Drew Days, The Interests of the United States, 15. Bailey, Kamoie & Maltzman, supra n.4. the Solicitor General and Individual Rights, 41 ST. 16. Joseph Tanenhaus, Martin Schick, Matthew executive agency that sets policy LOUIS L. REV. 1 (1996); Drew Days, The Solicitor Muraskin & Daniel Rosen, The Supreme Court’s Cer- goals that the SG would be expected General and the American Legal Ideal, 49 SMU L. tiorari Jurisdiction: A Cue Theory in Glendon Schu- REV. 73 (1995); Charles Fahy, The Office of the Solic- bert, ed. JUDICIAL DECISION-MAKING 111-32 (New to argue faithfully in Court. The vol- itor General 28 ABA J. 20 (1942). York: Free Press, 1963); Perry, supra n.8.

318 JUDICATURE Volume 89, Number 6 May-June 2006 AJS FILE PHOTO JAY MALLIN

Robert Bork, 1973-1977 Charles Fried, 1985-1989 Seth Waxman, 1997-2001 so the presence of the office seemed more cases before the Supreme Court quences of a negative precedent to carry the message that this was a than any other attorney said, “if we would be limited. With fewer con- particularly important case that mer- tell them to take the case and they do, straints, the SG can presumably ited the Court’s attention.17 we have an interest. If we ask them to carry the administration’s policy There is, however, a problem with deny the petition and they take it, we views into Court. The balance of this this interpretation; the solicitor gen- look like we are sulking if we do not study evaluates the influence of the eral almost never voluntarily files an file on the merits.”19 president on the amicus filings of amicus petition at the certiorari At the merits stage, the literature the OSG. stage. Deen, Ignagni, and Meernick argues that the amicus curiae brief find but six cases over the last half- provides the best chance for the Discretionary century.18 The solicitor general only president to use the solicitor general and invited briefs files an amicus brief at the certiorari to further the administration’s Evaluation of presidential influence stage when the Supreme Court agenda. The reasons appear to be starts with the proposition that there invites the office to do so. As a conse- relatively clear. When the U.S. is a is a problem with the conventional quence, Caldeira and Wright have party to a case, there is positive law, interpretation of the scope of presi- reversed the causality. The case is not in the form of agency regulations or dential influence over the SG in the important because the Office of the legislation that constrains the SG. amicus cases. On the most basic Solicitor General has identified it as The SG might have to abide by an level, not all amici are created equal. such. Rather, the Court has deter- agency’s position or argue for statu- Initially, the amici can be divided mined that it is important and that is tory interpretation that reflects the into two categories: the discretionary why the solicitor general has been position of Congress. Given the fre- and the invited briefs. It is important invited to participate. quent periods of divided govern- to note that calling the CVSG an On more than a few occasions, the ment, this is not an insignificant “invitation” is misleading. In reality, Court disregards the solicitor gen- issue. On the other hand, when the according to Mark Levy, a former eral’s advice to deny certiorari. In government is not a party to the attorney in the OSG, it is tantamount those instances, the SG typically still case, the constraints are significantly to an order from the queen.20 files an amicus brief at the merits reduced, permitting the SG to have While the discretionary briefs could stage. As Lawrence Wallace, a former greater discretion. These cases often be used as vehicles to do the presi- Deputy Solicitor General who argued involve state activity and the conse- dent’s bidding, the invited cases generally appear to fulfill a very different 17. Caldeira and Wright, supra n.14. invited cases. purpose. A number of past and pres- 18. Rebecca Deen, Joseph Ignagni & James 21. I interviewed former Solicitors General Meernick, Individual Justices and the Solicitor Gen- Archibald Cox, Robert Bork, Charles Fried, Ken- ent members of the OSG interviewed eral: The Amicus Curiae Cases, 1953-2000, 89 JUDI- neth Starr, Drew Days, Walter Dellinger, and Seth invariably argued that when the Court CATURE 68 (2005). Waxman as well as Principal Deputies Donald 19. Pacelle, supra n.2, at 26. Ayer, John Roberts, and Paul Bender; and long- “invites” the solicitor general to enter 20. Id. at 45. There is no formal rule concern- time Deputies William Bryson, Andrew Frey, Ken- a case, the office’s flexibility is circum- ing the invited briefs. Eugene Gressman, who neth Geller, Edwin Kneedler, and Lawrence 21 wrote the book on Supreme Court procedures, Wallace. I asked virtually all of them about the dif- scribed. In these cases, the solicitor claims it takes the votes of three justices to invite ferences between the invited and voluntary amicus general is often acting not as an agent the U.S. to file a brief. But because it is informal, cases. All except Dellinger said that the invited normally one or two justices will join if one or two cases were judged by different standards and even of the executive branch, but as a legal members of the Court want to solicit the brief. See he conceded some differences. Unprompted, advisor to the Supreme Court. In invit- Timothy Johnson, The Supreme Court, the Solicitor even others, like former Attorney General ing the office’s participation, some General, and the Separation of Powers, 31 AM. POL. Nicholas Katzenbach and former Assistant Attor- REV. 426 (2003). Incidentally, Johnson argues that neys General for Civil Rights Jerris Leonard, Brad- argue that the justices generally the invited briefs are solicited because the Court ford Reynolds, and John Dunne, mentioned wants to know where the government stands and particular invited cases and how they had to han- expect the office to provide a more fears retaliation, but he uses just a subset of the dle them differently. neutral and dispassionate review of

www.ajs.org JUDICATURE 319 the law and a survey of existing prece- opment of an issue. As issues evolve, enforcement authority, but are part of dent. This would resemble the origi- they take on greater complexity and the current administration’s policy nal intention of the amicus curiae often get attached to other issues.27 priorities. These truly discretionary brief, which was designed to be a When this occurs, the Court may ask amicus briefs, sometimes referred to recitation of legal positions by a disin- the SG to help find a doctrinal niche as the “agenda cases,” provide the terested “expert witness” to assist the for the new fact situation. best opportunity to further executive Court in making a decision.22 While the CVSG may limit the type designs. When filing these briefs, the Some members of the OSG argued of arguments the office can make, it SG more closely resembles the “Attor- that the reason that the office adopts a provides some benefits for the solici- ney General as Policy Advocate.”29 more neutral position in the invited tor general as well. First, the invita- The “agenda cases” get a great deal cases is because it has no real interest tion extends the government’s of attention from the administration in the case, or as Lawrence Wallace put influence into another area. More and it would be unusual if the presi- it, “we do not have a dog in the fight.”23 broadly, the solicitor general gener- dent, the attorney general, or a key As Walter Dellinger noted: “Briefs filed ates a reservoir of good will with the political operative did not try to influ- in the invited cases give the appear- Court that can be borrowed against ence the SG. But virtually all who have ance of greater disinterest and impar- when he has a case the office or the served in the office say such cases are tiality because the solicitor general administration considers important. relatively few. Further, as Lee argued chooses not to file an amicus brief vol- But the differences go beyond the “It is part of the duty of the SG to file untarily . . . . The case is lower on the amici that are invited and those that amici in the so-called agenda cases radar screen until the Supreme Court are more voluntary. Former Solicitor and in those cases, the Court does thinks the issue needs ventilation.”24 General Rex Lee argued that the so- give the SG a little more leeway. There Or, according to Dellinger, it may be called discretionary or voluntary is a realization by the justices that the because the issue is very contentious: amicus briefs should be divided into SG does carry some of the administra- Different branches of government have two categories. The first protects the tion’s positions to the Court. But all conflicting views and the solicitor gen- enforcement powers of the govern- solicitors general feel it would be a eral declined to get involved to avoid ment; the second furthers the partic- mistake to file in too many.”30 The controversy. This can occur when there ular administration’s views. The first OSG has to balance the need to rep- are very strong views, but they differ category involves direct federal law resent the administration with the from one agency to another.... The solicitor general takes neither position enforcement interests, such as Title practical necessities of satisfying a and may draft a brief reflecting the dif- VII, voting, and economic regulation majority of the Court. That alone ferent views of the agencies.25 cases, in which the federal govern- would be a difficult task, but it is fur- ment was not a party, but a decision ther complicated by the need to stabi- In this capacity as a friend of the could have a significant impact on its lize the law and to attend to court, the solicitor general is less interests.28 All administrations file congressional and agency designs. the traditional “Tenth Justice” and amici in these types of cases to fulfill more the “Fifth Clerk.” According the Justice Department’s enforce- Data and method to Drew Days, solicitor general ment powers and help the individual The data base for this study includes under President Bill Clinton, when agency. These cases typically come all full, signed decisions (n=781) in the Court invites the SG to partici- with constraints and are more likely which the Office of the Solicitor Gen- pate, the justices are “explicitly ask- to be used to fulfill legal enforce- eral participated as amicus curiae in ing for help. The Court wants a ment obligations rather than the the 1953-2000 terms. I used the theory for locating the case in terms president’s political goals. The SG Supreme Court Data Base, Phase II, of the thousands of other cases it appears to play the role of the “Attor- to identify the cases.31 But due to needs to address.” Thus, the SG ney General as Law Enforcement errors in that data set32 I checked and serves more as an officer of the Officer” in such cases. separately coded all the cases that the Court than an advocate for the The other cases have less to do with solicitor general entered as amicus executive or Congress. The Court is more likely to invite the SG to participate under certain 22. Samuel Krislov, The Amicus Curiae Brief: From 32. There are severe problems with the data for Friendship to Advocacy, 72 YALE L. J. 694 (1963). these cases. Some of the cases that are identified as conditions. The Court may invite the 23. Pacelle, supra n.2, at 24. amici are actually cases in which the SG is arguing 24. Id. at 24. for the federal government as a party. The opposite SG when it perceives that a federal 25. Id. problem is also prevalent. In more than a few cases, interest is involved. The SG is also 26. Id. the government is not participating in any form, 27. Consider an issue like hate speech that but the case is coded as if the SG was involved. A more likely to be asked to file a brief involves civil rights and freedom of speech and more frequent error is found in the coding of the when there is a new issue without divided long-term allies like the NAACP and the type of amicus activity: whether the SG enters the ACLU. case voluntarily or is invited. There are also prob- established precedent. The SG is 28. Lee, supra n.12, at 599-601. lems (and they are more severe) with the data in asked to provide a broader context.26 29. Pacelle, supra n. 2, at 22-26. the cases in which the government is a party to the Invitations may also be more likely 30. Lee, supra n.12, at 599-600. case. A significant number of cases are mischarac- 31. James Gibson, US SUPREME COURT DATA terized. In addition, not every case involving the when there is a change in the devel- BASE PHASE II: 1953-1993. ICPSR 6987. government involves the solicitor general.

320 JUDICATURE Volume 89, Number 6 May-June 2006 AJS curiae in the 1953-2000 period. The tionship is strong. Solicitors general case is the unit of analysis. and their deputies would argue the The dependent variable is the relationship is somewhat muted. If direction (liberal or conservative) of members of the OSG are correct the solicitor general’s position in the about the different standards for the amicus cases. I coded the term of the invited cases, there should be less original brief, whether the SG was the evidence of confluence between the moving party or the respondent, the position of the SG and the ideologi- issue area of the case, whether the cal predilections of the president. case raised a constitutional or a statutory question, and whether the posi- Results and analysis tion of the SG prevailed on the The literature argues that the SG merits. I examined each case to deter- Erwin N. Griswold, 1967–1973 largely plays the role of advocate for mine whether the SG joined the case the administration in filing amicus voluntarily or was invited to partici- briefs. This analysis examines whether pate by the Supreme Court.33 1=Democratic). But this is a blunt there are more gradations to the roles The independent variables are instrument. As a proxy for presiden- that the solicitor general plays when designed to assess the general ideo- tial ideology, I used the Presidential the office submits an amicus brief. logical position of the three branches Economic Liberalism and Presiden- Whether the influence is indirect and of government and, thus, the institu- tial Social Liberalism measures devel- arises through normal channels or the tional context that the solicitor gen- oped by Segal, Timpone, and pressure is direct as a result of the eral would face. To measure the Howard.36 alleged politicization of the office, ideological positions of the House of Because the dependent variable is there seems to be a confluence Representatives and the Senate, I dichotomous, I use logit to estimate between the general policy position of used the Poole and Rosenthal NOMI- the congruence between the posi- the president and the legal policy posi- NATE scores.34 For the ideology of the tions of the solicitor general and the tion of the SG in the amicus cases. The Supreme Court, I chose the aggregate aggregate ideology of the president, results in Table 1 show that there is a Segal and Cover scores as a measure the Supreme Court, the House, and statistically significant congruence of liberalism, updated by Segal, the Senate. If the president has influ- between the positions taken by the Epstein, Cameron, and Spaeth.35 ence over the solicitor general in the solicitor general and the general ideo- There are some choices to make for amicus cases, the relationship should logical positions of the Court and the the measure for presidential ideology. be positive and significant, control- president, controlling for the other Typically, studies use a dichotomous ling for the other variables. The variables. The results do not reflect variable by party (0=Republican, existing literature suggests that rela- congruence between the aggregate policy position of the House of Repre- sentatives or the Senate and the posi- 33. To determine whether the solicitor general 35. Jeffrey Segal & Albert Cover, Ideological was invited to participate, I triangulated the analy- Values and the Votes of U.S. Supreme Court Justices, tions adopted by the OSG. sis of the cases. I read the opinion of the Court, 83 AM. POL. SCI. REV. 557 (1989); Jeffrey Segal, While these results appear to con- the memoranda decisions that show the granting Lee Epstein, Charles Cameron & Harold of certiorari or jurisdictional orders, as well as the Spaeth, Ideological Values and the Votes of U.S. firm virtually every other study, a briefs that the SG filed. In many of the opinions, Supreme Court Justices Revisited, 57 J. POL. 812 closer examination is necessary. it will state at the end of the syllabus if the SG was (1995). I summed the 9 individual scores and invited to participate. If the opinion did not state divided by 9 to create a mean ideological score. While there are some good reasons to that the SG was invited, I would check all the juris- I chose the Segal and Cover measure because it expect presidential influence on the dictional statements in that case. If none of those is an independent of decision and therefore decisions stated that the SG was invited by the avoids the problem of being tautological. There SG and the amici provide the best Court, then I went to the brief that the SG filed in are alternatives, the measures developed by opportunity for that influence, the the case. After a brief summation of the issue in Andrew Martin & Kevin Quinn, Dynamic Ideal the case, there is a section in the brief called “The Point Estimation via Markov Chain Monte Carlo for question remains whether analysts Interest of the U.S. Government.” In that section, the U.S. Supreme Court, 1953-1999, 10 POL. have painted with too broad a brush. the SG would state that its interest was due to an ANALYSIS 134-153 (2002) and Lawrence Baum, invitation. In addition, I requested an official list Measuring Policy Change in the U.S. Supreme Court It seems clear that the presidents and of the invited cases from the Office of the Solici- 82 AM. POL. SCI. REV. 905-912 (1988), but they their attorneys general can influence tor General during the 1986-1995 terms. After I use votes to determine the attitudes of the jus- collected the data, I checked my list against the tices In the end, the differences in the results the SG, but that influence may vary one generated by the OSG. All of the cases on my from using the two measures are minimal with under certain conditions. list were on the list from the OSG and vice versa. one exception. 34. Eskridge argues that the Court pays atten- 36. Jeffrey Segal, Richard Timpone & Robert There are reasons to think that tion to the current Congress, rather than the one Howard, Buyer Beware? Presidential Success Through amicus briefs and cases vary across a that passed the legislation in question, because it Supreme Court Appointments, 53 POL. RES. Q. 557 is the current Congress that can override a deci- (2000). I use the Social Liberalism scores for the number of dimensions. Some cases sion it opposes. William Eskridge, DYNAMIC STATU- criminal procedure, civil rights, and civil liberties will likely reflect direct presidential TORY INTERPRETATION (Cambridge: Harvard cases and the Economic Liberalism scores for the University Press, 1994); William Eskridge, Overrid- economic cases. The question would be which influence (and maybe pressure). It ing Supreme Court Statutory Interpretation Decisions, one to use when looking at the entire data set. is just as likely that some cases will 101 YALE L. J. 331 (1991); William Eskridge, Reneg- Given that the correlation between the Social Lib- ing on History? Playing the Court/Congress/President eralism and Economic Liberalism is .97, they can inspire presidential indifference Civil Rights Game, 79 CAL. L. REV. 613 (1991). be used interchangeably. and, thus, reflect no pattern of con-

www.ajs.org JUDICATURE 321 fluence or levels of agreement that The lack of a relationship may be a ences should lie across two fault lines. are merely coincidental. The ques- function of the fact that many of these First, although there are exceptions, tion is whether there are systematic issues are not high on the agendas of constitutional issues are considered factors that divide those amici that the president or Congress. But it may more important, more controversial, reflect presidential-SG congruence also be due to the perception that the and more visible than statutory ques- and those that do not. Court seeks a more neutral perspec- tions. The heightened importance There are a number of dimensions tive on the law in proffering an invita- presumably makes presidential inter- by which amici may vary: whether the tion to file an amicus. The position of est more attenuated. Second, statu- SG is invited to submit a brief or does the SG is also not reflective of the ide- tory issues carry a significant so voluntarily, whether the case ology of the Court. That is not surpris- constraint: Congress. When interpret- involves a constitutional or statutory ing, as noted, but the invited brief ing a legislative provision, the SG and question, and by issue area. Finally does fulfill other needs such as help- the Court need to attend to the posi- some issues are settled or at least ing the Court establish the doctrinal tion of Congress. In addition, if Con- based on relatively clear precedents. foundation for a new or changing gress objects to the Court’s decision, a As Rex Lee noted, a contrary argu- area of law. simple majority is all that is necessary ment in an area of settled law would It is worth noting that the success to overturn it. By contrast, a constitu- “destroy the special status that I rate of the SG in the invited cases is tional decision requires an extraordi- enjoyed by virtue of my office.... The marginally higher than in the volun- nary majority to reverse it. Court would have written me off as tary amicus cases. This appears a lit- The results seen in Table 4, show someone not to be taken seriously.”37 tle surprising because while there is a some differences between constitu- A test of this last factor is beyond the confluence between the positions of tional and statutory cases. In constitu- scope of this study, but the other the SG and the ideology of the Court tional cases, there is confluence propositions can be examined. in the latter, there is a decided lack between the ideology of the president of same in the invited cases. Thus, and the position advocated by the Call for the Views even with no apparent relationship OSG, controlling for the other vari- Many members of the OSG argue between the position of the SG and ables. In addition, there is a conflu- that there are very different expecta- the ideological position of the Court, ence between the SG and both the tions when the office is invited to par- the success of the solicitor general Court and the House. In statutory ticipate via a Call for the Views of the does not suffer. It may be that the cases, much of that confluence disap- Solicitor General than when the Court is truly searching for solutions pears. Interestingly, though, there is office voluntarily submits an amicus to novel questions and its respect for no congruence between the general brief. While the latter seem to pro- the SG is such that it adopts the rec- ideological stance of either house of vide greater discretion for the SG and ommendations of the office. Congress and the position adopted by thus potential for external influence, This leaves the voluntary amicus the solicitor general. There is also no the former appear to carry significant cases, and Table 3 shows a statistically apparent confluence between the constraints. In these cases, the SG is significant confluence between the Court and the SG. There is, however, seen as more likely to be acting not as position of the solicitor general and a confluence between the ideology of an agent of the executive branch, but the ideology of the president and the president and the position taken as a legal advisor to the Supreme Court. These results confirm the by the solicitor general, lending fur- Court providing a less partisan review findings of previous studies that sug- ther credence to the impact of the of the law and a more dispassionate gested presidential influence in ami- president in the voluntary amicus survey of existing precedent.38 cus briefs, at least the more cases, at least. The empirical results, shown in discretionary ones. Given that for- Why is it the case, though, that Table 2, appear to support this con- mer Solicitor General Lee argued Congress does not seem to have a tention. There is no statistically sig- that there is a variation among these greater influence on the position of nificant evidence of confluence briefs, it is worth examining the dif- the SG in statutory cases? The agenda between aggregate presidential ide- ferences between constitutional and cases often carry the fewest legal con- ology (or for that matter, the policy statutory briefs and between various straints. Many are state cases, thus, positions of the House and Senate issue areas. there is no countervailing federal pos- and the ideology of the Supreme itive law to constrain the SG or the Court) and the position adopted by Constitutional president and the consequences of a the SG when the office is invited. and statutory issues negative precedent are limited. In Thus, when the SG files an amicus One potential source of variation addition, many of these cases impli- brief at the request of the Court, the between amicus briefs may be found cate federal enforcement authority office appears to be acting more as in the presumed differences between and the SG needs to adopt a consis- the “Fifth Clerk” of the justices and cases that raise constitutional ques- not necessarily pressing the adminis- tions and those that are based on 37. Lee, supra n.12, at 600-01. tration’s case. statutory interpretation. Those differ- 38. Pacelle, supra n.2, at 24-26.

322 JUDICATURE Volume 89, Number 6 May-June 2006 tent position regardless of the party If we isolate the different issues in mer assistant in the office, argued that controlling Congress. Examining Table 5, there is clear evidence of a “In 80 to 90 percent of the cases han- whether there are differences statistically significant presidential- dled, the dispositions did not change between issue areas may help unravel SG confluence in civil rights and that much. Probably 40 to 60 percent some of these complexities. non-criminal civil liberties, but no were criminal cases. We were still try- apparent agreement in regulation, ing to keep the bad guys in jail.”41 Nature of the issue criminal procedure, federalism, In the area of government regula- Studies show that Supreme Court state regulation, ordinary economic tion, while some presidents such as justices are more interested in some issues, and cases that involve juris- Ronald Reagan tried to dismantle issues than others.39 It stands to rea- dictional questions. These issues are large portions of the federal bureau- son that presidents and their politi- likely to spawn cases that reflect the cratic structure, most accepted the cal operatives will also care more law enforcement responsibilities need for regulation and did not about some issues than others. In that Lee referred to when he interfere with the OSG in formulat- ing positions protecting the government’s authority. The lack of The policy connections between the confluence in federalism cases seems a little surprising given the differ- solicitor general and the president in the ences between the political parties. But in view of the fact that many of amicus cases are not as strong across the cases involve questions of pre- emption, the reach of the commerce the board as most studies argue. clause, or the viability of state regulation and taxation policies, it is under- standable that the SG would need to addition, some issues are partisan in divided the voluntary amici into two protect federal prerogatives. In each nature and divide the political par- categories. In some, perhaps many, of these areas, the general trend of ties while others do not. Issues like of these areas, presidents are likely the office’s briefs can be character- crime control know no partisan divi- to be indifferent or unwilling to ized as consistent, and largely unre- sions. Both parties campaign on plat- invest their political capital in lated to the party in control. forms promising safer streets and directing the SG to take a particular tougher sentencing. Other issues, position. Whatever the reason, Another explanation? like economic regulation, tend to there is no statistically significant The results of the analysis suggest that require more nonpartisan law confluence between presidential the policy connections between the enforcement rather than a particular ideology and the position adopted solicitor general and the president in ideological position. On the other by the solicitor general in amicus the amicus cases are not as strong hand, issues like civil rights are at the cases in most issue areas. across the board as most studies heart of partisan differences and are The congruence between the posi- argue. Certainly the invited cases expected to lead the SG to take a pol- tion of the SG and the ideological weaken some of the hypothesized con- icy oriented position.40 tenor of the administration in civil nections. In some issue areas, the rela- liberties and civil rights is due to the tionship appears quite strong. It might salience of the issues, to be sure. But be because the president and his oper- 39. Lawrence Baum, THE PUZZLE OF JUDICIAL BEHAVIOR (Ann Arbor: University of Michigan solicitors general have a wider berth atives exert pressure, but is more likely Press, 1997); Pacelle, supra n.10; Perry, supra n.8; Craig Ducat & Robert Dudley, Dimensions Underly- in these cases because of a couple of because the president carefully ing Economic Policy-Making in the Early and Later other factors. The risk of an adverse screened his solicitor general and Burger Courts, 49 J. POL. 521(1987); David Rohde precedent is reduced because these assistant attorneys general to insure & Harold Spaeth, SUPREME COURT DECISION MAK- ING (San Francisco: Freeman, 1976). are often state cases and not tied as they would reflect the administration’s 40. Edward Carmines & James Stimson, ISSUE closely to positive law. More impor- view. But are there other explanations EVOLUTION:RACE AND THE TRANSFORMATION OF AMERICAN POLITICS (Princeton: Princeton Univer- tantly, perhaps because these cases that might be obscuring a positive sity Press, 1989). 41. Pacelle, supra n.10, at 26. Of course, these tend to be fact intensive, it is much relationship between the policy posi- cases are fact intensive also, but there is no policy easier for solicitors general to tion of the president and the amicus incentive to deviate from the consistent position. develop a compelling argument for filings of the OSG in other areas? 42. Lincoln Caplan, THE TENTH JUSTICE (New York: Vintage Books, 1987). That politicization distinguishing an existing precedent There are a couple of candidates. has occurred and at every level: the assistants, the creation of the principal deputy (sometimes that might otherwise tie their hands. First, are the results time bound? Sec- referred to as the political deputy), and in the The lack of confluence in many of ond, is there a difference between the types of men chosen to be solicitors general. It began in earnest in the Carter Administration. the other issue areas should not be government being the moving party But there are countervailing forces and even surprising. In the criminal cases, there in cases or the respondent? those selected for overt political reasons are quite mindful of them. In the end, it seems like the dif- is no expectation of partisan differ- Lincoln Caplan charged that the ferences have been of degree rather than kind. ences. Indeed, Richard Seamon, a for- Reagan Administration had politi-

www.ajs.org JUDICATURE 323 cized the OSG.42 That politicization of the institutional actors change as a impact that the president and politi- apparently came in the form of function of the status of the office. cal forces have in influencing the ami- increased pressure from the White It may seem strange that despite cus position adopted by the OSG. House on the solicitor general. If the differences in the success rate, Indeed, congruence between the that politicization has had an impact, there is no substantive or statistical president and the SG appears largely then the confluence between the change in the relationship between to be a function of two issue areas: position of the OSG and the presi- the SG and the institutional actors. civil rights and non-criminal proce- dent should be more pronounced But there are explanations for this dure civil liberties. In no other area is after 1981. The results from aggre- seemingly curious result. First, one there any broad level of confluence gate numbers are mixed, but if any- role of the SG is helping the Court between the ideology of the president thing, they seem to lend further stabilize the law, so it is not incon- and the legal positions advanced by credence to the less partisan nature ceivable that there would be some the solicitor general. Undoubtedly, of the OSG. Only one relationship consistency in position whether join- presidents and their attorneys general changes when the Reagan Adminis- ing the appellants or respondents. choose to intervene in cases in areas tration is used as the dividing point Second, while the differences outside of civil rights and civil liber- and that is in civil rights. Prior to the between what the SG is trying to ties, but those are the exception, Reagan Administration, whether the achieve as appellant and appellee rather than the rule. Certainly, there solicitor general was appointed by a can be rather pronounced when the is some hidden congruence between Democrat or a Republican, there was government is a party, there are the president and the SG in areas like consistent strong support for civil good reasons to think they would be criminal procedure where presidents rights claimants.43 Only since 1981 less dramatic in amicus cases. The would consistently champion the has that changed and while some of OSG has a great deal more discre- office’s support of law enforcement that was certainly ideologically moti- tion when filing voluntary amici than regardless of party. But presidents sel- vated, it is partially a function of the in the cases when the government is dom intervene in those cases. more difficult nature of the issues a party. When the government is not Analysts have been too quick to before the Court since that time.44 a party to the case, liability is reduce the role of the solicitor gen- Perhaps the answer lies in the rela- reduced because the consequences eral in amicus curiae cases to that of tive status of the solicitor general in of a negative precedent are more presidential advocate. The results of individual cases. Studies demon- limited than when the government is this study challenge that conven- strate that the Supreme Court largely one of the named parties. Finally, in tional wisdom. But shouldn’t confir- grants certiorari to reverse lower the aggregate, the sheer numbers of mation of the conventional wisdom court decisions. As a result, litigants cases that raise questions of non-par- be considered the more surprising are much more likely to prevail on tisan law enforcement appear to result? Certainly, the SG is a presi- the merits when they brought the overwhelm the smaller number of dential appointee and many amicus case to the Supreme Court.45 The the agenda cases.46 briefs provide discretion. However, solicitor general is no different: the there are good reasons to expect office is more successful when it is Conclusion and implications consistency and stability in the briefs the moving party. Of course, while The results of this study suggest that of the OSG regardless of which party the average litigant is successful only we may have exaggerated the connec- resides in the White House. about a third of the time as respon- tions between the president and solic- The OSG has a long tradition of dent, the SG wins over half its cases itor general. That connection exists, independence and many attorneys when it is the appellee. Is it possible to be sure, but there are limits to the general respected that by trying to that the solicitor general’s briefs bet- ter reflect the president’s policy position when the office is the appellant 43. Prior to 1981, Republican solicitors general and Gate-Keeping in the Supreme Court, 15 J. L. ECON. supported civil rights claimants in 86 percent of & ORG. 549 (1999); Jeffrey Segal, Harold Spaeth and can be more aggressive? Perhaps the voluntary amicus cases, while their Democratic & Sara Benesh, THE SUPREME COURT IN THE AMER- counterparts’ level of support in amicus cases was ICAN LEGAL SYSTEM 285-89 (New York: Oxford Uni- the SG needs to be more defensive 94 percent. versity Press, 2005). when placed in the role of respon- 44. The Reagan and Bush I solicitors general 46. Meinhold and Shull find a close relation- supported civil rights claimants in just 36 percent ship between public statements by the president dent. To examine that possibility, I of the voluntary amicus briefs. This explains the and the position adopted by the solicitor general. controlled for the status of the solici- preponderance of the variation that is ascribed to But they isolate a few issue areas and examine presidential influence. Certainly civil rights was an only 35 cases. Their results are certainly consistent tor general. The SG is much more agenda issue for the Reagan Administration, but with the general notions that agenda cases get successful when it files as an amicus many of the issues involved affirmative action, bus- close presidential scrutiny and are relatively few in ing, and second generation cases. As Lawrence number. Their results support one of the findings supporting the moving party (76 per- Wallace noted: “Civil rights work is very trying these of this study: there is no variation in the positions cent) than when it joins the respon- days. There is a great complexity to the cases. taken by the parties in two of the areas of law they Twenty-five years ago the cases were less technical. examine. The other two issues, civil rights and dent (56 percent). But interestingly, It was a lot more apparent who wore the white hats. civil liberties, were the areas in this study that none of the relationships between There are much closer issues today with merits on showed statistically significant differences. both sides” Pacelle, supra n.2, at 266. Stephen Meinhold & Steven Shull, Policy Congru- the position of the solicitor general 45. Perry, supra n.8; Gregory Calderia, John ence Between the President and the Solicitor General, 51 and the aggregate ideological scores Wright & Christopher Zorn, Sophisticated Voting POL. RES. Q. 527 (1998).

324 JUDICATURE Volume 89, Number 6 May-June 2006 AJS insulate the office from political The CVSG, for example, does not forces.47 History is replete with exam- exist in isolation. By responding as a ples in civil rights, one of the agenda true friend of the court, the SG adds issues, of battles between the solici- to its reserve of credibility with the tor general and the president’s advi- justices. By jealously guarding that, sors over the position the office the SG earns the right to press the should articulate in an amicus brief. agenda of the present administration Those conflicts animated the rela- in the most visible cases without tions between the office and the incurring the wrath of the justices. president from the Truman Adminis- But the SG understands that to do so tration through the two Bush White recklessly and too often would be Houses.48 In addition, if the office counterproductive and harm the has been arguing a certain position office’s ability to discharge all of its for a number of years, it is con- responsibilities. In addition, the strained from suddenly reversing Archibald Cox, 1961-1965 president and the solicitor general field at the behest of a new adminis- might want to promulgate a specific tration. Perhaps more to the point, tice.” Interestingly, that title does not position in a particular case, but the OSG often has to argue the posi- imply any particular presidential their hands are tied by the office’s tion of the executive agency or Cabi- influence. position in past briefs or in the cases net-level department in its briefs. As amicus curiae, the SG seems to in which the government is a party. Most studies show that bureaucratic play three different roles, only one of But if we have exaggerated the influ- agencies change very slowly and which closely ties the solicitor gen- ence of the president in amicus often resist the impulses that new eral to the president. The SG adopts cases, it is entirely possible that we administrations try to initiate.49 Presi- the role of Fifth Clerk in many of the underestimate the administration’s dents and their political operatives invited cases, the Attorney General influence in the cases in which the typically have a monumental task in as Policy Advocate in civil rights, civil government is a party attempting to alter the direction and liberties, and the agenda cases, and The agenda cases are very impor- priorities of agencies in the face of the Attorney General as Law tant and provide a few visible oppor- budgetary restraints, interest group Enforcement Officer in the prepon- tunities each term for the opposition, bureaucratic inertia, and derance of the other voluntary amici administration to have a voice in the congressional intransigence. and some of the invited cases. Cer- Supreme Court. The consequences The results of the analysis suggest tainly, there are exceptions and the and reach of those agenda cases may a more nuanced view of what is, in office may well file briefs that reflect well outstrip the impact of the larger essence, a multidimensional set of the administration’s position in numbers of other amici. In most of roles that the SG plays when filing an some of the invited cases or in some the amicus cases, the president’s amicus brief. Those results suggest of the areas that are dominated by influence is likely to be muted by the that there are significant differences nonpartisan briefs, but in the aggre- solicitor general’s need to argue a between the responsibilities atten- gate the trends suggest different pri- consistent position, help the Court dant to the office when it is invited to orities emanate from the different impose stability on doctrine, attend participate by the Supreme Court roles. to congressional interests, follow the and when it has more discretion. It is important to remember that policy position staked out by the rel- The solicitor general is often these different roles are not com- evant agency, and formulate an argu- referred to broadly as the “Tenth Jus- pletely independent of each other. ment that can attract the votes of five justices. g

47. Nancy Baker, CONFLICTING LOYALTIES:LAW AND W. Bush Administration as reflected in the OSG POLITICS IN THE ATTORNEY GENERAL’S OFFICE, 1789- brief that supported affirmative action in Adarand 1990. (Lawrence: University Press of Kansas, v. Minetta over many objections. 1992). 49. The frustration of Cabinet officials and 48. Pacelle, supra n.2, has numerous examples their relatively rapid turnover is well documented. of conflicts in the civil rights area: Brown v. Board Hugh Heclo, A GOVERNMENT OF STRANGERS (Wash- of Education in both the Truman and Eisenhower ington D.C.: Brookings, 1977); Michael Nelson, A Administrations; Archibald Cox’s desire to go Short, Ironic History of American National Bureau- slow and Robert Kennedy’s hope of speeding up cracy, 44 J. POL. 747 (1982); Jack Knott & Gary integration; Nixon Administration pressure in the Miller, REFORMING BUREAUCRACY:THE POLITICS OF Swann case; battles over the brief in Bakke during INSTITUTIONAL CHOICE (Englewood Cliffs; Pren- the Carter Administration; disagreements tice-Hall, 1987); Sally Coleman Selden, James between the head of the Civil Rights Division, Brudney & Edward Kellough, Bureaucracy as a Rep- RICHARD L. PACELLE, JR. Brad Reynolds, and both Reagan solicitors gen- resentative Institution: Toward a Reconciliation of eral including the Bob Jones case; the government’s Bureaucratic Government and Democratic Theory, 42 is a professor in the Department of change of position in the Mississippi University AM. J. POL. SCI. 717 (1998) For a look at some Political Science at Georgia Southern desegregation case during the first George Bush agencies that did respond and under what condi- University. presidency; a very contentious relationship tions, see Dan Wood & Richard Waterman, The ([email protected]) between the Civil Rights Division and the OSG in Dynamics of Political Control of the Bureaucracy, 85 the Clinton Administration; even into the George AM. POL. SCI. REV. 801 (1991).

www.ajs.org JUDICATURE 325 Table 1. Policy Congruence Between the Solicitor General and the Three Branches of Government in All Amicus Curiae Cases, 1953-2000 Terms

Coefficient Standard Error President .013** .004 Supreme Court 2.692** .543 House of Representatives -.221 .549 Senate -.908 1.554 Constant -1.57** .265

N=781 Log Likelihood=-512.97 Pseudo R2=.18 VIF=1.49

**significant at .05 level

Table 2. Policy Congruence Between the Solicitor General and the Three Branches of Government in the Invited Amicus Curiae Cases, 1953-2000

Coefficient Standard Error President .002 .008 Supreme Court .883 1.025 House of Representatives .953 1.203 Senate 2.113 3.127 Constant .359 .516

N=189 Log Likelihood=-117.56 Pseudo R2=.02 VIF=1.49

*significant at the .05 level Table 3. Policy Congruence Between the Solicitor General and the Three Branches of Government in the Voluntary Amicus Curiae Cases, 1953-2000

Coefficient Standard Error President .018* .004 Supreme Court 3.169* .669 House of Representatives .498 .426 Senate .701 1.828 Constant -2.161 .320

N=592 Log Likelihood=-381.78 Pseudo R2=.17 VIF=1.49

*significant at the .05 level

Table 4. Policy Congruence Between the Solicitor General and the Three Branches of Government in the Voluntary Constitutional and Statutory Amicus Curiae Briefs, 1953-2000

Constitutional Briefs Statutory Briefs Coefficient Coefficient President .032** .013* Supreme Court 7.790** 1.088 House of Representatives 2.761** .059 Senate -6.991 .851 Constant -5.405 -.678

N 231 361 Log Likelihood -105.66 -238.07 Pseudo R2 .37 .06 VIF 1.82 1.59

**significant at the .01 level *significant at the .05 level Table 5. Policy Congruence Between the Solicitor General and the President in Selected Issue Areas in Voluntary Amicus Curiae Cases, 1953-2000 Terms

Coefficient Standard Error N Criminal Law and Procedure -.175 .136 135 Civil Liberties (non-criminal) .029** .013 56 Civil Rights .054** .011 147 US Regulation .014 .015 126 Federalism/State Regulation .027 .025 61 Ordinary Economic -.339 .281 36

**significant at .05 level