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

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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 poli- cies 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.
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