OFFICE OF THE SOLICITOR GENERAL PARTICIPATION BEFORE THE UNITED STATES SUPREME COURT: INFLUENCES ON THE DECISION-MAKING PROCESS
DISSERTATION
Presented in Partial Fulfillment of the Requirements for
the Degree Doctor of Philosophy in the
Graduate School of The Ohio State University
By
Corey A. Ditslear, B.A., J.D., M.A.
*****
The Ohio State University 2003
Dissertation Committee: Approved by: Professor Lawrence Baum, Adviser
Professor Gregory A. Caldeira ______Adviser Professor Richard Timpone Department of Political Science Copyright by Corey Alan Ditslear 2003 ABSTRACT
My dissertation is a study of the influence exerted by the Office of the Solicitor
General on the decision-making of the United States Supreme Court. Current models of
Supreme Court decision-making place a high or exclusive reliance on ideology as the indicator of how the justices vote. However, research has also shown that the Office of the Solicitor General, the chief attorneys on behalf of the United States government, is significantly more successful before the Court than the average attorney. This success may require modification of the current understanding of the decision-making of the
Supreme Court to include an element of influence outside the justices’ ideological preferences. Previous research has focused on the success of the Office of the Solicitor
General without delving into whether that success was a result of case selection by the
Office of the Solicitor General, congruence of ideologies between the Office of the
Solicitor General and the members of the Supreme Court, or some influence by the
Office of the Solicitor General. This dissertation explores whether the Office of the
Solicitor General’s success is the result of influence on the justices by controlling for the justices’ ideologies and the other potential influences on the justices’ decisions such as public opinion, Congress, state governments, petitioner bias, and the experience of the attorneys for the period of 1953-1999. I find that the Office of the Solicitor General does exert an independent influence on the decisions of the justices that is robust across a ii variety of different subcategories of the data as well as for the entire dataset. The influence of the Office of the Solicitor General is on a par with the impact of the justices’ own ideologies. Thus the influence of the Office of the Solicitor General can completely counter-balance the ideologies of the justices or when added to the impact of the ideologies, can make it virtually impossible for the position espoused by the government to lose. Because of this finding, I have used the subcategories of data to begin to explore the sources of the Office of the Solicitor General’s influence. The subcategories reveal that the sources of the Office of the Solicitor General’s influence include a general bias in favor of the government, variance in issue areas, and case selection by the Office of the
Solicitor General. This research suggests that any attempt to model the decisions of the
United States Supreme Court must include a component recognizing the influence of the executive branch as represented by the Office of the Solicitor General.
iii Dedicated to my wife, Samantha K. Stalnaker,
and my sons, Khyrien and Bryce
iv ACKNOWLEDGMENTS
I wish to thank my adviser, Larry Baum, for his guidance, prodding, and encouragement throughout this project, without which I may have spent another 12 years in school.
I thank Greg Caldeira for his always skeptical, yet always helpful thoughts on the dissertation.
I thank Rich Timpone for his devotion to making me understand the methods I employ better than I thought ever would.
I am grateful for the comments and critiques provided by those who attended the
Research in American Politics colloquia for which I presented early stages of this material. I am also indebted to Kevin Scott, Scott Menke, Jason Mycoff, Kim Conger,
Margie Williams and Ed Hasecke for their camaraderie during graduate school, the almost constant discussion of research ideas and methods, and the cohort support group that I hope will continue long into the future.
I am grateful to Jim Brudney for helping me make the transition from lawyer to political science academic.
Finally, I pay special thanks to my wife Samantha for allowing me to switch careers in mid-stream and supporting me through some trying times.
v VITA
October 15, 1969...... Born - Tiffin, Ohio
1992...... B.A. English, The Ohio State University
1995...... J.D. Moritz College of Law, The Ohio State University
2000...... M.A. Political Science, The Ohio State University
1997 - 2003...... Graduate Teaching and Research Assistant The Ohio State University
PUBLICATIONS
1. Ditslear, Corey A., Engel v. Vitale, in Carl Singleton, ed., The Sixties in America (Pasadena: Salem Press, 1999).
2. Ditslear, Corey A. and Lawrence Baum. 2001.“Pipelines and Polarization: Selection of Law Clerks and Ideological Behavior”, 63 Journal of Politics 3:869-885.
3. Brudney, James J. and Corey A. Ditslear. 2001. “Designated Diffidence: District Court Judges on the Courts of Appeals.” 35 Law and Society Review 3:565-606.
FIELDS OF STUDY
Major Field: Political Science
vi TABLE OF CONTENTS
Page Abstract...... ii
Dedication...... iv
Acknowledgments...... v
Vita...... vi
List of Figures...... ix
Chapters: 1. Introduction...... 1
2. History and Background of the Office of the Solicitor General...... 13
3. Integrating Theories of Success and Influence with Models of Supreme Court Decision-Making...... 37 A. Success...... 39 B. Influence...... 52 C. Supreme Court Decision-Making...... 60 D. Models and Methods...... 65 1. Dependent Variables...... 68 2. Independent Variables...... 71
4. Finding Success and Influence: Macro-Level Analyses...... 89 A. Data...... 90 B. Re-analyzing McGuire...... 97 C. Influence Models...... 103
5. Influence Under a Variety of Circumstances...... 120 A. Court Variance Models...... 121 B. Political Variance Models...... 150 C. Case Variance Models...... 171 D. Office of the Solicitor General Cases...... 187 E. Conclusions...... 199
vii 6. Conclusions and Future Research...... 201
Appendix A: Alternate Measures of Supreme Court Preferences...... 211
Appendix B: Modeling Experience Advantage...... 212
Bibliography...... 215
viii LIST OF FIGURES
Figure Page
1 Solicitors General of the United States (1870-2002)...... 21
2 United States Government Participation Before the Supreme Court: All Cases, Merits Decisions, and Argued Cases, 1950-1998...... 28
3 Summary of the Success of the Office of the Solicitor General as Petitioner/Appellant Compared to Non-Governmental Petitioners/ Appellants before the Supreme Court on Jurisdictional Questions, 1950-1998...... 32
4 Summary of the Success Rate of the Office of the Solicitor General as Petitioner and Respondent in Orally Argued Cases Compared to Other Participants, 1953-1999...... 34
5 Success Rate of the United States and Federal Agencies as Parties to a Case in Orally Argued Cases Before the Supreme Court, 1953-1994..... 35
6 Hypotheses Posited to Explain the Success of the Office of the Solicitor General before the United States Supreme Court...... 55
7 Dependent Variables Employed in Chapter 4 and 5 Models...... 70
8 List of all Variables Used in Models in Chapters 4 and 5 Including Indication of Model, Hypothesis, and Coding...... 72
9 Success of Petitioner and Respondent Controlling for Office of the Solicitor General Participation and Experience of the Attorneys...... 100
10 Success of Petitioner and Respondent Controlling for Office of the Solicitor General Participation, Experience of the Attorneys and Interacting Participation and Experience...... 100
11 Influence of Independent Actors on the Outcome of Cases Controlling for the Ideological Preferences of the Justices, 1953-1999...... 106
ix 12 Predicted Probabilities of Liberal Outcome in Cases with Various Values of the Independent Variables, including First Differences and Prediction Ranges...... 113
13 Predicted Percentages of Liberal Outcomes based on Liberal and Conservative Office of the Solicitors General as compared to Cases with no Office of the Solicitor General Participation across the Range of Median Justice Ideologies when the Petitioner is Liberal, 1953-1999..... 118
14 Percent of Cases with a Liberal Vote by Ideological Position of the Office of the Solicitor General for the Three Chief Justices from 1953-1999...... 123
15 Influence of Independent Actors on the Court’s Decisions by Chief Justice Tenure...... 124
16 Predicted Percentages of Liberal Outcomes in Cases with Various Values of the Independent Variables by Supreme Court Chief Justice.... 129
17 Percent Liberal Individual Justice Votes for All Cases, Liberal Office of the Solicitor General, Conservative Office of the Solicitor General, and No Office of the Solicitor General Participation...... 132
18 Individual Justice Votes as Determined by Potential Outside Influences, 1953-1999...... 135
19 Individual Justice Votes as Determined by Potential Outside Influences with Office of the Solicitor General Ideology Varying by Appointing President, 1953-1999...... 143
20 Models of Influence on Liberal Outcomes by Presidential Party ...... 153
21 Predicted Percent Liberal Outcomes in Cases by Party of President...... 156
22 Models of Liberal Votes as Determined by Potential Outside Influences with Office of the Solicitor General Ideology Varying by President, 1953-1999...... 158
23 Predicted Probabilities of Liberal Outcome in Cases with Various Values of the Independent Variables by Presidential Tenure...... 162
24 Models of Liberal Votes as Determined by Potential Outside Influences Varying by Solicitor General, 1953-1999...... 165
x 25 Predicted Probabilities of Liberal Outcome in Cases with Various Values of the Independent Variables by Solicitor General...... 170
26 Models of Influence on Liberal Outcomes by Party Position of the Office of the Solicitor General...... 173
27 Predicted Percent Liberal Outcomes in Cases by Party Position of the Office of the Solicitor General...... 176
28 Influence of Independent Actors on the Outcome of Cases Controlling for the Ideological Preferences of the Justices, 1953-1999 by Type of Case...... 178
29 Predicted Probabilities of Liberal Outcome in Cases with Various Values of the Independent Variables, including First Differences and Prediction Ranges by Type of Case...... 182
30 Testing Sources of Office of the Solicitor General Influence Using Only Cases with Office of the Solicitor General Participation as Party or Amicus Curiae...... 193
31 Predictions for Office of the Solicitor General Wins Based on Sources of Influence, 1953-1999, Office of the Solicitor General as Party or Amicus Cases Only...... 198
32 Influence of Independent Actors on the Outcome of Cases Controlling for the Ideological Preferences of the Justices Comparing Vote Scores, Segal-Cover Scores and Ideology Scores as Measures of the Court’s Preferences, 1953-1999...... 211
33 Bar Graph of Attorney Experience by Liberal Decisions, 1953-1999..... 212
xi CHAPTER 1
INTRODUCTION
In studying the behavior of judges it is important to recognize the elements that may have an impact on the decision-making process. Traditionally it was thought that the only thing of import for decision-making was the law as established through statutes and common law decisions. This view still pervades the thinking in law schools around the country. Judges often encourage this viewpoint as it creates legitimacy for their
“undemocratic” (Dahl 1957) power over policy.
Even though scholars viewed the law as a Platonic ideal, it was difficult to believe that the judges’ backgrounds did not have at least some influence over their interpretations of the law. Research has indicated that the most important element in a judge’s background is their personal ideology. However, their ideologies are not the exclusive influence on their interpretations of the law. It is reasonable to assume that judges’ views are influenced not only by their understanding of the law and the interpretation of that understanding that comes out of their personal ideologies, but also by the same types of factors that other political actors experience. These other factors include an understanding of public opinion and the need to not move too far afield from what is deemed acceptable by the public; a deference to the branch which created
1 statutory law in the first place, the Congress; and a desire to understand the larger
implications of their decisional options by obtaining feedback in a direct manner from the
executive branch through the briefs and arguments of the Office of the Solicitor General.
If it is believed that the desire of judges, especially the justices on the United
States Supreme Court is to make good law as well as good policy (Baum 1999), then
these other factors become important in the decision-making calculus. Unfortunately, all
too often, research on the Supreme Court has ignored or glossed over these other factors.
The result is an incomplete picture of the decision-making process. The answer to this
problem is to create more complete models of Supreme Court decision-making than have
previously been seen. This requires an attempt to integrate the individual pieces of the
decision-making puzzle into a coherent whole by evaluating both internal and external
factors congruently.
An issue area where there has been considerable research indicating the
possibility of influence on the Supreme Court is the study of the role played by the Office of the Solicitor General (referring to the Solicitor General and the attorneys in the
Office). The Office of the Solicitor General represents the United States government in almost all litigation before the United States Supreme Court. The attorneys in the Office brief and argue hundreds of cases every year, far outstripping the experience of any private attorneys before the Supreme Court. Because of the Office of the Solicitor
General’s role as a political actor and as the most active and visible litigator, the Office has drawn much scholarly attention. That attention has tended to focus on the success of the Office of the Solicitor General.
2 The Office of the Solicitor General wins cases at a much higher rate than the average attorney. However, the research often then equates that success with influence on the Court’s decisions. The Office of the Solicitor General is a participant before the
Court more often than any other actor in the system. Unlike the public or Congress, the
Office of the Solicitor General plays a direct role in shaping the agenda of the Court, and potentially influencing the decisions. While there is considerable research on the success of the Office of the Solicitor General, little has been done to determine whether that success is actually due to influence, and whether the justices are making decisions based in part on the presence and or arguments presented by the Office of the Solicitor General.
Thus the overriding question with which this dissertation is concerned relates to this success versus influence issue. Given that the Office of the Solicitor General is more successful than any other party before the United States Supreme Court, does that success reflect influence on the Court’s decisions? Without some direct evidence that the success of the Office of the Solicitor General is due to influence it can not be automatically assumed that success is equivalent to influence. Any success may simply be the result of congruence between the ideals of the Office of the Solicitor General and the Court’s members, or the selection of cases that the Office determines are winnable because they are an ideological match with the ideologies of the majority of the justices.
Rather than assuming influence based on success we must explore whether the success of the Office of the Solicitor General is based on the Office’s influence or some other factor which creates congruence between the position adopted by the Office of the
Solicitor General and the policy preferences of the justices. Further, there may be some factors that are not unique to the Office of the Solicitor General, but that appear on the 3 surface to be the influence of the Office at work, this might be seen in the example of the
experience of the attorney arguing the case before the Court since the Office of the
Solicitor General is almost always going to have the advantage of experience.
In a different but related setting, that of the president before Congress, there has
been an overemphasis on influence while ignoring success. Bond and Fleisher (1990)
explained the relationship in this context in the following way:
“...Most students of presidential-congressional relations are interested in success only because it is associated with influence. Although presidential influence may increase success, the president’s policy preferences may prevail for reasons that have nothing to do with influence. For example, a high ‘success’ rate may result if the president and Congress have highly similar policy preferences. In such a situation, regardless of whether the president is weak or powerful, his preferences will succeed because they correspond to what most members of Congress want to do anyway. Most students of presidential-congressional relations, therefore, have been searching for data and research designs to analyze the extent to which the president can influence Congress to do what it otherwise would not have done. Successes resulting from causes not under the president’s control are viewed as uninteresting and unimportant (Bond and Fleisher 1990, 2- 3).”
Research on the Office of the Solicitor General in judicial politics has proceeded with the opposite problem, it has evaluated success, claiming that success implies influence without determining that success is a result of influence. Even if it is possible to assume influence from success, which requires a significant stretch of the imagination, research on the Office of the Solicitor General has failed to address the underlying question: if the
Office exerts some influence over the decisions of the Court, then on what is that influence based.
4 As indicated in the foregoing passage, success refers to the number of times one party, the Office of the Solicitor General for my purposes, obtains that party’s preferred case outcome. Therefore, the high success rate for the Office of the Solicitor General means that the Office wins a greater percent of the cases in which they are involved than the average litigant. Success then is simply a matter of which side in any given case wins.
This is a rather blunt instrument that can explain nothing about whether a parties actions contributed to their winning. Showing that someone wins a lot and then presuming influence from the fact that they were involved in the case is the approach taken by much of the literature on the Office of the Solicitor General. However, influence requires evidence of something more than success.
Influence, broadly construed, would thus be whether a party participant in an attempt to obtain the party’s preferred case outcome diverted the Court, or at least the median justice on the Court, from the Court’s preferred policy position because of the actions or presence of the party. In such a case the Court’s decision is not based solely on the policy preferences and background characteristics of the justices and the case facts, as posited by the attitudinal model, but also on the arguments or presence of the party. In this case the relevant party attempting to influence the Court is posited to be the
Office of the Solicitor General.
This broad definition of influence does not require that the Office of the Solicitor
General force the Court to change its preferred policy position. The Court may simply recognize the importance of the Office’s position from a political or legal standpoint and as a result either agree with that position because of the arguments made by the Office of the Solicitor General, or simply defer to the position of a co-equal branch of government. 5 This definition of influence allows for situations where the justices’ perceptions of the issues in the case are framed by the presentation by the Office of the Solicitor General, thus allowing them to vote with their policy preferences in the presented frame even where their policy preferences might have conflicted with the Office’s position were the case framed in an alternate way. If the Court acts as it prefers to act even when the
Office of the Solicitor General is present, then the Office’s success is based on its ability to find cases that agree with the Court’s position. If, however, the Office of the Solicitor
General can influence the Court, then the decision-making models must be modified to include other factors beyond the ideologies of the judges.
Furthermore, any influence exerted by the Office of the Solicitor General can not be explored in isolation. In order to determine whether the Office of the Solicitor
General truly exerts an influence the other factors that potentially exert influence on the justices’ decision-making must be analyzed. The influences on the Court include the previously mentioned external influences (public opinion, Congress, and other governmental litigants like the states), but also include the justices’ policy preferences, the side in the case on which the party is situated, and even the role of amicus curiae participants.
Going beyond the success and even the overall influence of the Office of the
Solicitor General would seem justified. While the influence exerted by a particular actor is important in understanding the justices’ decision-making, the sources of the influence may be just as important. The Office of the Solicitor General has been posited to exert influence for a number of different, sometimes contradictory reasons. If I can parse the influence into measurable components, then the path to understanding the actual 6 workings of the Court in the interactions with the other branches of government will be clarified even further.
I propose to delve into this issue by looking at the potential sources of influence by the Office of the Solicitor General in the context of the broader theoretical models of
Supreme Court decision-making. By doing so I will show how disparate studies of the external actors in the judicial system can be incorporated into models of Supreme Court decision-making. Until scholars recognize that ideological considerations, especially as they have been defined in the past, can not explain the fullness of the decision-making process, models of Supreme Court decision-making will continue to be incomplete.
Supreme Court bar lawyers invest tremendous amounts of time and money in writing briefs and preparing oral arguments. This would not occur if the legal community felt these activities were irrelevant to Supreme Court decision-making. As a result political science approaches to the judiciary will not be taken seriously by the legal community until they produce results which comport more closely with what lawyers have experienced first-hand in judicial decision-making.
In order to achieve the goals of this dissertation, I will be looking at the merits decisions of the Supreme Court from 1953-1999 using the Spaeth (2001) United States
Supreme Court Judicial Database supplemented with data relevant to the Office of the
Solicitor General participation before the Court. The data allow me to conduct a number of analyses that expand on previous models of Supreme Court decision-making. I employ probit analysis on both success and influence models of the role of the Office of the Solicitor General as compared to other actors. The data is also broken into subsets to assess the relative impact of the Office of the Solicitor General’s role in specific issue 7 areas and in different time periods. The data set includes all cases whether or not the
Office of the Solicitor General was involved to avoid selection bias. This does not mean
that case selection, in terms of the selection process employed by the Office of the
Solicitor General is not a concern (see Zorn 1997). These methods were chosen to
provide comparability with previous research and compatibility with the form of the data
available.
The results of this research are important for understanding the decision-making
processes employed by Supreme Court justices. It also provides insight into a very
important relationship between the executive branch and the judicial branch. Finally, this
research can help us build better models of the interactions between other political actors
and the courts, especially the state governments, the president, through the Office of the
Solicitor General, the public and Congress. Influence on the decisions of justices by the
Office of the Solicitor General where none is required under the Constitution would tell
us that there are self-imposed constraints on the decision-making calculus that prevent a
justice from relying solely on their personal preferences.
In Chapter 2 of the dissertation I will go through the history and background of
the relationship between the Office of the Solicitor General and the Supreme Court. The history is important in order to understand how the theoretical relationships that will be developed in Chapter 3 have been built and make intuitive sense based on real world observations. I will begin with the statutory creation and rationales for the Office of the
Solicitor General. Chapter 2 will proceed with an attempt to understand the developing role of the Office of the Solicitor General, and the Office’s relationship to both the
Executive and Judicial branches. The history and background will lay out the descriptive 8 statistics concerning Office of the Solicitor General participation before the Supreme
Court from the request by agencies for further action, to the final disposition of the case.
While doing so I will explore a number of anomalies in the way the Office of the
Solicitor General acts or chooses not to act as advocate for the United States
Government.
Chapter 3 develops the theoretical underpinnings of the research project. The theory begins with an exploration of the theoretical approaches used to evaluate the success of the Office of the Solicitor General. The chapter will assess the deficiencies in the work on success. This will lead into an explanation of why studying influence is a necessary next step. Based on the theories surrounding success and the problems related to those theories I will build a theory of influence. Such a theory is not without pitfalls.
Influence is less tractable than success and as a result does not lend itself to testing as easily. An analysis of how influence can be explored in the context of the Office of the
Solicitor General’s participation before the Supreme Court must be conducted at this stage. After evaluating these problems it is necessary to attempt to explain how they can be addressed in the theory of influence. Hypotheses concerning the nature and extent of any influence will be posited allowing for the building of models and testing of hypotheses.
Further, this chapter will place the theory of Office of the Solicitor General influence into the broader context of Supreme Court decision-making theory. I explain how the theory of influence I have developed has the potential to fill some of the gaps in decision-making models currently employed to study the courts. This approach also leads to the ties between the Office of the Solicitor General and the other actors who 9 might be influential. Finally, at this stage I provide a detailed description of the models and methods employed. The chapter will explain the operationalization of variables necessary to build models of success and influence, comparing alternative approaches that might result in different outcomes. I then explain why the theory and the practicality of studying Office of the Solicitor General influence do not allow for the inclusion of all theoretically interesting variables into the analysis, and the consequences of this limitation. Then I will lay out the entirety of the success and influence models I employ.
I next explore a comparison of the overall success and influence results of the
Office of the Solicitor General models in Chapter 4. Chapter 4 begins with explanations of the data employed for understanding success and influence. I begin this substantive portion of the dissertation with a brief re-analysis of the success of the Office of the
Solicitor General. After re-analyzing the concept of success, I build an integrated model of success that is similar to the models of influence. Chapter 4 also includes the initial analysis of influence employing an integrated model of influence. After laying the groundwork, I will present the results of the probit analysis explaining the findings.
After the models have been reported I will relate the findings back to the theory and explore whether the results reveal influence or simple congruence. I will also present a lead-in to Chapter 5 where the analyses will be broken into sub-parts for robustness checks and to explore potential differences in the influence of the Office of the Solicitor
General across time and in different issue areas.
Chapter 5 consists of a sequence of sub-analyses for added nuance on the exploration of influence. These breakdowns allow Chapter 5 to explore the sources of the
Office of the Solicitor General’s influence on the Court. I will begin with theoretical 10 explanations for the breakdown of the full model. There are four separate groups of sub- analysis in this chapter. These include models based on changes on the Court, in the political environment, and in the cases themselves. The fourth sub-analysis looks only at the cases in which the Office of the Solicitor General was involved. The Court variance models cover changes in natural courts, in chief justice and a more detailed analysis of each individual justice. Political variance models consist of breakdowns based on political party, appointing president and Solicitor General. The next group of analyses cover case related factors. The first of these consist of separations based on the position in the case occupied by the Office of the Solicitor General (petitioner versus respondent).
Further, there will be two breakdowns based on the type of case: statutory versus constitutional issues, and foreign versus domestic policy issues. In addition I explore the influence of the Office of the Solicitor General in broader issue areas. The Office of the
Solicitor General only analysis is the fourth sub-analysis. This approach tests whether it is the congruence of the Office’s position with the other actors’ positions that drives the influence of the Office of the Solicitor General, or some source of influence derived exclusively from the Office. I finish the discussion of the sub-analyses by relating the findings of these analyses to the full influence model as well as to the broader theoretical approaches.
Chapter 6 is the concluding chapter. Here I bring the previous analyses together by proposing how it is possible to modify the Supreme Court decision-making models to account for these influences. I then explore the potential future implications of this research for analyses of Supreme Court decision-making. This presentation leads to implications for other external actors and to a discussion of how this approach allows us 11 to look at the balance between the competing desires for good law and good policy. This chapter also notes where the research herein has been incomplete for various reasons and can be continued in the future.
12 CHAPTER 2
HISTORY AND BACKGROUND OF THE OFFICE OF THE SOLICITOR GENERAL
The Office of the Solicitor General employs the group of attorneys who represent the United States government in almost all cases before the United States Supreme Court.
The Office of the Solicitor General is in charge of the decision whether to ask the United
States Supreme Court to review adverse lower court rulings. As part of this role, the
Office of the Solicitor General, after consulting with all relevant departments, is in charge of determining the position the government will espouse in all briefs. The attorneys prepare the petitions, briefs and other papers filed by the government. The
“vast majority of government cases are argued by the Solicitor General or by one of the
Office’s other attorneys.”1 The Office of the Solicitor General also handles the decisions on whether to file an amicus brief or to intervene in cases in any appellate court. The
Office is rather small given the large number of potential cases through which they must sift. There are approximately 55 attorneys and support staff working in the Office. The attorneys include the Solicitor General appointed by the President, four deputy Solicitors
General, currently 17 attorney Assistants, four recent law school graduates as Bristow
Fellows, as well as 2 summer research interns and a number of law student clerks.
1From the Office of the Solicitor General webpage: http://www.usdoj.gov/osg/aboutosg/function.html. 13 In the overall structure of the Department of Justice, the Solicitor General reports
only to the Attorney General and the Deputy Attorney General. The Solicitor General is
on a par with the Associate Attorneys General. This structure suggests a great amount of
independence from the remainder of the Department of Justice hierarchy as well as a
more direct tie to and potential control from the Attorney General and in turn the
President. It should be no surprise that an appointed official who has a special office in the Supreme Court building but remains a member of the executive branch is isolated from the everyday actions of the remainder of the Department of Justice. This isolation is reflective of the overall tension in the dual roles of the Office of the Solicitor General.
The Office of the Solicitor General has not always been in existence. The
Judiciary Act of 1789 established the position of the Attorney General charging that individual with the duty “to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of the departments, touching any matters that may concern their departments.”2 In fact when the bill was introduced in the Senate the intent was that the
Attorney General would be appointed by the Supreme Court rather than the President.
(Marcus and Perry, eds. 1992; Bloch, 1989.)
However, while the Attorneys General had the power to decide which cases
should go before the Supreme Court, they had no authority over the vast majority of
cases in which the United States government was a party in the lower federal courts.
Congress began to create legal staffs for the individual departments from 1830 through
2Act of Sept. 24, 1789, ch.20, Sec.35, 1 Stat. 73, 93. 14 1860, leaving the Attorney General with even less control. Each department could direct
litigation in the district courts and yet the Attorney General could not until 1861 when the
Attorney General was granted authority over the district attorneys and marshals.3 The authority was not complete because the legal offices in a number of other departments retained authority over the lower court litigation as well.4 While giving the Attorney
General the power to control some of the litigation in the district courts, Congress also
granted the Attorney General the ability to hire outside attorneys to handle cases. The
cost of doing so quickly became prohibitive and Congress began to explore alternatives
to address both the cost issue and the inconsistency of the government’s positions caused
by allowing each department to control its own litigation.
On June 22, 1870 the law creating the Department of Justice, and along with it the
Solicitor General, was enacted.5 The Solicitor General was designated as the only
government official required to be “learned in the law,” replacing the same requirement
for the Attorney General.6 From 1870 through the 1930s the Office of the Solicitor
General took over the duties inherent in litigation and appellate practice, as the Attorney
General decreasingly chose to argue the government’s case personally. By the 1930s the
Office of the Solicitor General had taken over the majority of litigation from the
individual departments’ attorneys. Through increasing responsibilities for oral argument
before the Supreme Court, the Solicitor General’s skills as an appellate advocate
3Act of August 2, 1861, ch.37, 12 Stat.285.
4Act or Aug. 6, 1861, ch. 65, 12 Stat.327 and Act of Mar. 2, 1867, ch.169 Sec. 3, 14 Stat. 471.
5Act of June 22, 1870, ch. 150, 16 Stat.162.
6Act of June 22, 1870, ch. 150, Sec. 2, 16 Stat.162. 15 increased such that Samuel Phillips, the second Solicitor General (1872-1885) was said to:
“discard the minor points of a case, and address himself to the great questions upon which [the Court’s] decision ought to rest; and then he was so candid in stating the position his opponents and the facts appearing in the record, and so lucid and strong in his argument, the he commanded the entire confidence, as well as the respect, of the Court.”(Waxman, 1998; Battle, 1904)
Thus at an early stage in the development of the duties of the Office of the Solicitor
General, the respect and presence in the courtroom had been established.
As the respect and abilities of the Office of the Solicitor General were increasing, the functions of the Office were also evolving. There are a number of separate functions of the Office at the Supreme Court level. The first function of the Office of the Solicitor
General is to review all cases where the United States government received an adverse ruling in the lower court to decide which cases should be appealed. Arguably the most important function, and the one even the earliest Solicitors General viewed to be their primary function is to brief and argue cases before the United States Supreme Court. The office can participate in two ways before the Court. First the Office of the Solicitor
General can be the attorney on behalf of the government or a government agency that is a party to litigation, either as petitioner/appellant or respondent/appellee. In this role the
Office of the Solicitor General represents almost all government agencies before the
Court. Second, the Office of the Solicitor General may choose to participate by filing an amicus curiae brief stating the views of the United States (O’Connor 1983, Caldeira and
Wright 1988, 1998). Finally, there are functions of the Office at the lower federal court level, and politically in the Executive branch.
16 As indicated the Office of the Solicitor General is in charge of all litigation on behalf of the United States government before the Supreme Court. The duties of the
Office reflect this single minded role. The Office of the Solicitor General is responsible for evaluating all cases where the government lost in the lower courts to determine in which cases they should petition for certiorari; writing briefs supporting or opposing certiorari; writing merits briefs for cases accepted by the Supreme Court; orally arguing cases before the Supreme Court, or granting permission to another government attorney or another party’s attorney to argue on behalf of the government; filing amicus curiae briefs in cases where the Office of the Solicitor General determines there is sufficient government interest in the outcome to warrant action; consenting to amicus curiae briefs of others when the United States is a party; intervening in cases where it is appropriate; and mediating disputes between departments over the legal positions the Office has chosen to espouse. (Salokar, 1992). This consolidated control of the federal government’s policy positions in Supreme Court cases raises issues of selection bias that need to be addressed when structuring any analysis of the influence of the Office of the Solicitor
General.
The Supreme Court appellate practice role of the Office of the Solicitor General begins with the decision whether to appeal adverse rulings from the lower federal appellate courts. The departments or agencies generally file requests for adverse decisions in the Courts of Appeals to be appealed to the Supreme Court. However, on occasion the Office of the Solicitor General personally or at the request of the President or Attorney General will pick cases to appeal to the Supreme Court unilaterally.
Christopher Zorn (1997) found in his dissertation that the departments and agencies filed 17 requests for appeals in 63% of all cases (1355 of 2161) in 1993 and 1994 where there was an adverse ruling in the Courts of Appeals. Based on recommendations from the
Department of Justice and their own review of the cases, the Office of the Solicitor
General took further action in only 234 cases of those cases where review was requested by the executive departments. Even where the Office of the Solicitor General chose to take action, only 64 of the actions resulted in briefs being filed with the Supreme Court.
The remaining actions related to further review by the Courts of Appeals including en banc review and rehearing requests. Zorn explained the decision to appeal in terms of the cost of appeal, the salience of the issues, the likelihood that the Supreme Court will accept the case for review, and the likelihood of winning the case. These factors are important in understanding whether the Office of the Solicitor General is influential or simply picking winners as Zorn’s research implies.
Since the 1930s the Solicitor General has assigned the attorney to argue the case on the government’s behalf, either from their own Office or from one the departments. A few agencies have been given statutory authority to represent themselves before the
Supreme Court, but in all other instances, the Office of the Solicitor General decides whether to request review before the Supreme Court, and how to proceed with the defense of any matter brought against the United States (Days 1994). In fact where two departments or agencies are in disagreement, the Office of the Solicitor General can and does on occasion grant permission for another government attorney outside the Office of the Solicitor General to argue or present briefs in opposition to the government position being presented by the Office of the Solicitor General creating the interesting situation where the government is arguing against itself. 18 After selecting the cases for review and assigning attorneys to the appeal, the
Office of the Solicitor General must take on the role of the appellate practitioner by researching the issues and facts of the case, filing briefs with the Supreme Court, submitting relevant motions and arguing the case. In addition, the Office of the Solicitor
General must answer briefs where they are the respondent/appellee rather than the petitioner/appellant. Thus while the Office of the Solicitor General has much discretion in choosing the cases to appeal from the adverse rulings from the lower courts, they have no discretion in choosing when they are hauled into court by their losing opponent in the lower courts.
Similarly, the Office of the Solicitor General has discretion to decide whether to file an amicus curiae brief or not. However, when the Office is invited to express the views of the United States as an amicus curiae the Office of the Solicitor General always files an amicus curiae brief indicating a lack of discretion. The Office of the Solicitor
General can be invited by the Court or independently choose to file an amicus curiae brief expressing the views of the United States on an issue in a case of interest to the government, but where the government is not an actual litigant. Unlike non-governmental amicus filers, the Office may file a brief in any case without the permission of the parties.
In this role, the Office of the Solicitor General may also ask permission to present oral argument as an amicus curiae. Such requests are usually granted for the United States, although similar requests by other parties are rarely granted. Both types of participation before the Supreme Court provide the Office with much discretion in deciding how best to represent the government’s interest in arguments and briefs.
19 Zorn’s findings concerning the review decisions of the Office of the Solicitor
General point to the functions of the Office of the Solicitor Genera unrelated to Supreme
Court participation. These functions include making recommendations on further actions to be taken in the Courts of Appeals even if there is no Supreme Court and deciding which cases, where the government lost at the trial court level (the United States District
Courts) or agency hearing stage, will be appealed to the Courts of Appeals. Thus, the
Office of the Solicitor General handles decisions concerning appeals of all cases, whatever the court level, where the United States has received an unfavorable position in the Court below. The Office of the Solicitor General also makes recommendations on the filing of cases in the trial courts, advising the United States Attorneys. Finally, the Office of the Solicitor General provides the Attorney General and the President with advisory legal opinions on executive orders, statutes, treaties and any other matter when requested to provide such information. Thus the Office of the Solicitor General has evolved since its beginnings in 1870 to become the legal expert and ringmaster for the United States government.
From 1870 to the present there have been 43 men who have served as Solicitor
General, including two acting Solicitors General (See Figure 1). A one person staff in
1870, the Solicitor General himself, has grown to 55 today while reducing the responsibilities of the Office for both efficiency and political reasons. Additionally, the attorneys in the Office often work closely with staff attorneys in the departments and agencies of the Executive Branch. Since1870 the Office of the Solicitor General has taken on a role at least in part independent from the Attorney General’s and the
President’s direct control (Harmon 1977, 1988). 20 Name Term President Benjamin H.Bristow Oct 1870- Nov. 1872 Grant Samuel F.Phillips Nov. 1872- May1885 Grant John Goode (Acting) May 1885- Aug. 1886 Cleveland George A. Jenks July 1886- May 1889 Cleveland Orlow W. Chapman May 1889- Jan. 1890 B. Harrison William Howard Taft Feb. 1890- Mar. 1892 B. Harrison Charles H. Aldrich Mar.1892- May 1893 B. Harrison Lawrence Maxwell Jr. Apr. 1893- Jan. 1895 Cleveland Holmes Conrad Feb. 1895- July 1897 Cleveland John K. Richards July 1897- Mar. 1903 McKinley Henry M. Hoyt Feb. 1903- Mar. 1909 T. Roosevelt Lloyd Wheaton Bowers Apr. 1909- Sept. 1910 Taft Frederick W. Lehmann Dec. 1910- July 1912 Taft William Marshall Bullit July 1912- Mar. 1913 Taft John William Davis Aug. 1913- Nov. 1918 Wilson Alexander C. King Nov. 1918- May 1920 Wilson William L. Frierson June 1920- June 1921 Wilson James M. Beck June 1921- June 1925 Harding William D. Mitchell June 1925- Mar. 1929 Coolidge Charles Evans Hughes Jr. May 1929- Apr. 1930 Hoover Thomas D. Thacher Mar. 1930- May 1933 Hoover James Crawford Biggs May 1933- Mar. 1935 F.D. Roosevelt Stanley Reed Mar. 1935- Jan. 1938 F.D. Roosevelt Robert H. Jackson Mar. 1938- Jan. 1940 F.D. Roosevelt Francis Biddle Jan. 1940- Sept. 1941 F.D. Roosevelt Charles Fahy Nov. 1941- Sept. 1945 F.D. Roosevelt J. Howard McGrath Oct. 1945- Oct. 1946 Truman Philip B. Perlman July 1947- Aug. 1952 Truman Walter J. Cummings Jr. Dec. 1952- Mar. 1953 Truman Simon E. Sobeloff Feb. 1954- July 1956 Eisenhower J. Lee Rankin Aug. 1956- Jan. 1961 Eisenhower Archibald Cox Jan. 1961- July 1965 Kennedy Thurgood Marshall Aug. 1965- Aug. 1967 Johnson Erwin N. Griswold Oct. 1967- June 1973 Johnson Robert H. Bork June 1973- Jan. 1977 Nixon Wade H. McCree Mar. 1977- Aug. 1981 Carter Rex Lee Aug. 1981- June 1985 Reagan Charles Fried Oct. 1985- Jan. 1989 Reagan Kenneth W. Starr May 1989- Jan. 1993 G.H.W. Bush Drew S. Days III May 1993- July-1996 Clinton Walter Dellinger (Acting) Aug. 1996- Aug. 1997 Clinton Seth P. Waxman Nov. 1997- Jan. 2001 Clinton Theodore B. Olson Jan. 2001- present G.W. Bush
Figure 1: Solicitors General of the United States, 1870-2002 (from the Office of the Solicitor General webpage: http//www.usdoj.gov/osg/aboutosg/sglist.html).
21 The Solicitor General is a Senate confirmed political appointment of the
President. At the same time the Office of the Solicitor General is charged with defending the laws of the United States in Court. Furthermore, there is a sense among Solicitors
General and the Court that while representing the government position, the Office of the
Solicitor General is also acting as a guardian of good legal doctrine and not just good political doctrine. No matter how the Office of the Solicitor General acts, as either legal or political representative, the Office of the Solicitor General is always representing the interests of the United States government. There have been some claims over time that prior to Ronald Reagan’s Solicitor General appointments, the legal role was the most prominent, but that Reagan had a political agenda that he pushed through his Solicitor
General thus changing the Office and thus the public and Court perception of the Office of the Solicitor General (Caplan 1987). However, the debate over the proper role of the
Office of the Solicitor General has been ongoing in different fields for many years.
This early history and explanation of the role played by the Office of the Solicitor
General lays the groundwork for understanding the current role of the Office of the
Solicitor General and why it might be expected that the Office of the Solicitor General exerts some influence over the decisions of the Supreme Court. Since its early beginnings as just another cog in the Department of Justice machine when the Office of the Solicitor
General was responsible for little more than litigation before the Supreme Court and even then only gaining power to control agency and department action after a number of years and with some reluctance by the rest of the government; the Office of the Solicitor
General has evolved into a multi-attorney Supreme Court appellate practice law firm with a very special client: the United States government. The result is experience before the 22 Court that far outstrips all other attorneys, and a mutual respect between the justices on
the Court and the representatives of the Office. In fact the Office of the Solicitor General
is the only attorney not directly affiliated with the Supreme Court with a permanent office in the Supreme Court building.
The different roles of the Office of the Solicitor General, representing the political interests of the president versus representing the interests of the country and law create an inherent representational paradox. While the Office of the Solicitor General must represent the interests of the United States before the Court, the Office must also act as another member of the Court in some ways in order to maintain legitimacy and to follow the law. It is the same paradox which judges often confront: they are expected to be apolitical political actors. Even if they do act politically, they must not give the impression that they are doing so. What is in the best interest of the president or the executive departments politically, may not be in the best interest of the law or the country. The Office of the Solicitor General must weigh these issues before deciding upon a position in any brief filed with the Court. Included within the decision concerning whether to petition the Supreme Court for review is an important consideration that one former Solicitor General always tried “to impart to [his] client agencies: on appeal, things can always get worse.”(Waxman 1998).
As guardians of both the law and the political positions of their appointing presidents and executive departments, Office of the Solicitors General serve two masters, balancing the two roles well enough to maintain respect and potentially influence before the Supreme Court. This dual role of the office is epitomized by the comments of two
prior Solicitors General. Francis Biddle (1962) wrote “the Solicitor General has no 23 master to serve except his country.” In a phrase now inscribed in the United States
Department of Justice building, Frederick Lehmann noted, “the United States wins its point whenever justice is done its citizens in the courts.”(Waxman, 1998).
Many authors have framed the issues in terms of a normative debate on whether the Office of the Solicitor General should act as an impartial agent of the Court and the law or whether the Office of the Solicitor General is the agent of the president. Much of the debate has occurred between former Solicitors General and their staffs and legal scholars. These roles can and often do come into conflict. The interests of the Office of the Solicitor General and the role he should play in politics has been widely debated by legal scholars for years (Calabresi 1998; Cox 1963; Burt and Schloss 1969; Cooper 1990;
Chamberlain 1987; Schwartz 1988, 1992; Wald 1998; Strauss 1989, 1998; Sobeloff,
1951; Norman-Major 1994; McGinnis 1992; Horowitz 1977; Lanctot 1991; Griswold
1969; Devins 1994, 1998; Fraley 1996; Guinier 1993). Political scientists tend to attribute a purely policy oriented role to the Office of the Solicitor General (Segal 1986,
1988; Scigliano 1971; Puro 1981; O’Connor 1983; Epstein and Knight 1998). The political science approach is a more empirical approach which attempts to avoid the normative aspects of evaluating the dual role, but which has serious implications for the debate as will be seen in Chapter 3. Former Solicitors General on the other hand, tend to focus on the legalistic, impartial agent of the Court aspect (Days 1994, 1995, 1996a,
1996b, 1998; Elman 1987a; Sobeloff, 1951; Griswold 1969; McCree 1981; Rankin
1998), with a few notable exceptions (Fried 1991; Lee 1986). These practitioners come at the issue from an obvious bias based in part on their years of experience and their attempts to maintain their legitimacy and image before the Court and public. Often in the 24 middle are the legal scholars who would prefer the legalistic approach, but recognize that as a presidential appointee, the Office of the Solicitor General can not avoid the political element of decision-making (Schwartz 1988, 1992; Wald 1998; Strauss 1989, 1998;
Norman-Major 194l; McGinnis 1992; Horowitz 1977; Lanctot 1991). These authors tend to engage in a more normative assessment concerning which role is the preferred role from both a practical and theoretical perspective often with the goal of influencing the actors in the system: primarily judges, administrators, legislators and of course the Office of Solicitor General.
Because of the role of watching out for legal doctrine, the Office of the Solicitor
General does not always act as one might expect of an attorney zealously advocating for their client. Such actions by the Office of the Solicitor General imply that at least on occasion, the Office acts not as a political representative of the President and government, but as a guardian of good legal doctrine. The Office of the Solicitor General has been known to argue both sides in its briefs or allow another government attorney to argue in opposition to present the Court with both sides of a legal issue as it would affect the government; admit to the Court that the lower court made a mistake; or even acknowledge that the other party is correct (Salokar 1992; Hellman 1983; Rosenzweig
1994).
The Office of the Solicitor General takes three actions that do not fit with the normal actions of attorneys before the Court. The Office of the Solicitor General can acquiesce in review before the Court, acknowledging that certiorari should be granted in order to have an important question resolved by the court. In acquiescing the Office of the Solicitor General may or may not admit that the other party is correct. There are two 25 purposes to an acquiescence. First to acknowledge the correctness of an argument made by the opposing party, while still claiming a difference of opinion concerning the outcome. The second function is more common. In acquiescing the Office of the
Solicitor General is admitting the importance of the issue and the need for a final resolution by the Supreme Court whether favorable or adverse. This often occurs even when the ideological make-up of the Court raises doubts about whether the government’s position is likely to win.
The Office also confesses error in a number of cases each year, acknowledging that a mistake was made in the lower court and asking the Court to reverse what was a win for the government in the lower court. Such confessions of error regularly occur two to three times every term with the result that the position which provides the greatest advantage to the government is the position that does not prevail (Rosenzweig 1994).
And finally, the Office of the Solicitor General can offer advice on legal matters and the effect of a court decision on the United States government when the Court invites the
Office of the Solicitor General to express the opinion of the United States government on a matter before the Court. The Office of the Solicitor General always responds to these invitations by the Court, although they do not always take a side in the case. These three actions are not trivial and can alter the way the influence and success of the Office of the
Solicitor General is understood.
The United States is often caught in the middle of disputes that make it to the
Supreme Court making the government the most frequent participant as both a party and an amicus filer before the Supreme Court. During the period 1950-1998, the government participated as a party or amicus in almost two-fifths of all the cases docketed. (Figure 26 2). The government’s participation in all cases on the docket was as low as 31% in 1962 and as high as 51% in 1976. Most other litigants with the exception of the state governments participate in only 1 or 2 cases per term, and even the state governments participate relatively little compared to the United States government.
27 Docketed Cases Merits Decisions Argued Cases Term Total Government % Total Government % Total Government % 1950 1,335 480 36 171 107 63 130 84 65 1951 1,369 481 35 188 91 48 129 76 59 1952 1,439 555 39 188 106 56 141 90 64 1953 1,467 495 34 177 78 44 116 66 57 1954 1,568 549 35 195 101 52 105 65 62 1955 1,856 675 36 244 111 45 123 72 59 1956 2,052 769 37 259 129 49 145 92 64 1957 2,008 753 37 297 155 52 154 94 61 1958 2,062 765 37 246 103 41 143 71 50 1959 2,178 759 35 249 118 47 130 88 68 1960 2,313 843 36 176 106 60 117 52 56 1961 2,585 850 33 176 106 60 136 76 56 1962 2,824 877 31 280 125 45 150 81 54 1963 2,779 910 33 269 114 42 144 83 58 1964 2,662 1,000 38 234 104 44 122 70 57 1965 3,284 1,116 34 282 133 47 131 76 58 1966 3,356 1,143 34 307 127 41 150 77 51 1967 3,586 1,274 36 369 200 54 179 115 64 1968 3,918 1,325 34 258 130 50 139 68 49 1969 4,202 1,500 36 239 133 56 144 73 51 1970 4,213 1,620 38 329 150 46 151 89 59 1971 4,535 1,839 41 447 125 28 173 78 45 1972 4,639 2,133 46 437 180 41 177 103 58 1973 5,079 2,428 48 349 160 46 170 93 55 1974 4,620 2,199 48 308 162 53 173 111 64 1975 4,760 2,219 47 351 175 50 179 121 68 1976 4,829 2,444 51 372 186 50 176 99 56 1977 4,704 2,243 48 276 139 50 164 97 59 1978 4,734 2,211 47 267 122 46 168 99 59 1979 4,781 2,023 42 281 158 56 156 108 69
Sources: U.S. Department of Justice, Annual Report of the Attorney General of the United States, 1951- 1985 (Washington, D.C.: U.S. Government Printing Office, 1961-1986); and U.S. Department of Justice, Annual Report of the Office of Solicitor General of the United States, 1986-1998 (Washington, D.C.: U.S. Government Printing Office, 1987-1999).
Figure 2: United States Government Participation Before the Supreme Court: All Cases, Merits Decisions, and Argued Cases, 1950-1998.
Figure 2 continued on next page
28 Figure 2 continued
Docketed Cases Merits Decisions Argued Cases Term Total Government % Total Government % Total Government % 1980 5,144 1,999 36 277 128 46 154 101 66 1981 5,311 2,052 39 315 136 43 184 104 57 1982 5,079 2,152 42 283 172 61 183 131 72 1983 5,086 2,026 40 262 150 57 184 118 64 1984 5,006 1,884 38 236 146 62 175 114 65 1985 5,158 1,966 38 275 139 51 171 106 62 1986 5,123 1,998 39 282 140 50 175 104 59 1987 5,256 1,932 37 251 135 54 167 106 63 1988 5,657 2,028 36 265 122 46 170 91 54 1989 5,746 2,138 37 224 108 48 146 89 61 1990 6,316 2,528 40 232 107 46 125 77 62 1991 6,770 2,616 39 183 103 56 123 84 68 1992 7,245 2,749 38 206 126 61 116 88 76 1993 7,786 3,016 39 157 97 62 99 70 71 1994 8,101 3,249 40 146 84 58 94 64 68 1995 7,565 2,899 38 189 129 68 90 68 76 1996 7,602 2,802 37 160 103 64 90 68 75 1997 7,692 2,801 36 146 83 57 96 70 73 1998 8,083 2,871 36 143 94 66 90 76 84 Total 215,346 84,184 39 12,453 6,236 50 7,047 4,296 61
# Note: Docketed Cases are cases that are on the docket at any time during the term, cases carried over to the following year are counted as docketed cases in each term year, but are included in the argued cases and merits decisions only for the term when they are actually decided.
Figure 2: United States Government Participation Before the Supreme Court: All Cases, Merits Decisions, and Argued Cases, 1950-1998.
29 When looking at the cases where the Court made an actual decision in the case, the government’s participation is even greater. Of the cases accepted by the Court where there was some kind of merits decision, summary or orally argued, the government participated as a party and amicus combined in 50% of the cases from 1950-1998. This represents a low of 28% in 1971 that is much lower than the next lowest years at 41%, with a high of 68% in 1995. Finally, looking only at orally argued cases, the government participated as a party or amicus in 61% of the cases. The government’s participation in orally argued cases only fell below 50% in two terms between 1950 and 1998 (1968 and
1971) and reached as high as 84% (1998). Even during the 1950s and 1960s when the overall government participation in docketed cases was in the 30s, the participation in orally argued cases was still averaging 60%. These figures indicate that the role played by the government through the Office of the Solicitor General may be incredibly important for understanding the workings of the Supreme Court, especially at the oral argument stage where so many cases have government participation.
While the heightened participation by the United States government indicates a need to pay special attention to its role when doing research on the Supreme Court, it does not tell us anything about the results of the participation. The success of the government is an important element in determining how to study the Office of the
Solicitor General’s impact on Supreme Court decision-making. If the Office of the
Solicitor General is more successful than the average litigant, then it is possible to explore the factors that make them more successful. Further, this success is an indication that the Office of the Solicitor General may be influencing the decisions of the justices.
Such influence is not automatically correlated with success. One can be successful 30 without actually exerting any influence. By the same token, it is possible to exert some influence and still end up losing cases. As most research on the Office of the Solicitor
General has focused on the success of the government’s position, and because success implies influence according to most of these researchers, a closer look at the success of the Office of the Solicitor General is necessary. Furthermore, research on the Office of the Solicitor General has shown that the government is not only the most frequent participant before the Supreme Court, but is also much more successful than the average litigant before the Court in getting their petitions accepted by the Court, and in winning their preferred outcome. The success of the Office of the Solicitor General occurs at all stages of the Supreme Court proceeding, and in both the respondent and petitioner roles of the Office of the Solicitor General.
The Office of the Solicitor General’s success far outstrips the average litigant before the United States Supreme Court winning well over half of the cases in which they participate. The success of the Office of the Solicitor General at the jurisdictional stage is quite striking. The Supreme Court grants review of a disproportionately high percentage of government cases compared to non-government cases (Figure 3). For all jurisdictional decisions, the Office of the Solicitor General as the Petitioner/Appellant is successful in getting their cases reviewed 7 out of 10 times while the average litigant is lucky to have a
3 in 100 chance of getting their case decided.
31 Total % of Cases Total Cert petitions Government 2,360 Granted 1,623 68.8%
Non-Government 167,667 Granted 3,875 2.3%
Appeals Government 596 Probable Jurisdiction Noted 426 71.5%
Non-Government 4,489 Probable Jurisdiction Noted 838 18.7%
All Jurisdictional Decisions Government 2,958* Probable Jurisdiction Noted/Granted 2,049* 69.3%
Non-Government 176,228* Probable Jurisdiction Noted 4,714* 2.7%
* Note: The All Jurisdictional Decision totals include a small number of Miscellaneous Decisions not reported in this Figure, only 1 of 4,073 miscellaneous petitions was granted during this time period.
Sources: U.S. Department of Justice, Annual Report of the Attorney General of the United States, 1951-1985 (Washington, D.C.: U.S. Government Printing Office, 1961- 1986); and U.S. Department of Justice, Annual Report of the Office of Solicitor General of the United States, 1986-1998 (Washington, D.C.: U.S. Government Printing Office, 1987-1999).
Figure 3: Summary of the Success of the Office of the Solicitor General as Petitioner/Appellant Compared to Non-Governmental Petitioners/Appellants before the Supreme Court on Jurisdictional Questions, 1950-1998.
32 Even though the Office of the Solicitor General is more successful than the average litigant in getting their cases heard, they may be less than successful in the outcomes of decisions. This is not the case. For all merits cases the Office of the
Solicitor General wins slightly less (63%) than on jurisdictional decisions (69%)(Figure
4). But in cases where oral argument occurs, the government wins three-fourths of the time as a petitioner/appellant and just over half the time as a respondent/appellee. The success rate as a respondent/appellee is the most striking given that petitioners on the whole win 63% of their cases. This reflects the bias of the justices in favor of selecting cases where they disagree with the lower court decision. When the Office of the Solicitor
General participates on the respondent/appellee side the petitioner is at least 13 percentage points less likely to win than if they were facing any other litigant. The presence of the Office of the Solicitor General as a respondent/appellee appears to, in itself, level the playing field between petitioner/appellants and respondent/appellees.
33 Cases Total
Total % of: Merits Decisions: Orally Argued and Summary Decisions Government Wins 4,125 66% Government Loses 1,743 28% Government Split 367 6%
Merits Decisions: Orally Argued Decisions Only All Cases Petitioner Won 62.6% SG as Petitioner Won* 75.0% Non SG Petitioners Won 61.0%
All Cases Respondent Won 37.4% SG as Respondent Won* 52.4% Non SG Respondents Won 35.4% All Cases SG Won 63.4%
* Note: Difference of Means between SG and Non-SG Petitioners and Respondents Significant at p<.001.
Sources: Orally argued and Summary decisions combined-U.S. Department of Justice, Annual Report of the Attorney General of the United States, 1951-1985 (Washington, D.C.: U.S. Government Printing Office, 1961-1986); and U.S. Department of Justice, Annual Report of the Office of Solicitor General of the United States, 1986-1998 (Washington, D.C.: U.S. Government Printing Office, 1987-1999). Orally argued decisions only-calculated from the researcher’s data set, derived in part from the Spaeth Supreme Court Database, 1953-1999.
Figure 4: Summary of the Success Rate of the Office of the Solicitor General as Petitioner and Respondent in Orally Argued Cases Compared to Other Participants, 1953-1999.
34 Term Number of Cases % Won 1953 54 55.5 1954 52 67.3 1955 70 50.0 1956 87 55.2 1957 87 50.6 1958 60 70.0 1959 85 64.7 1960 72 63.9 1961 54 50.0 1962 58 63.8 1963 53 62.3 1964 53 75.5 1965 58 60.3 1966 60 61.7 1967 74 73.0 1968 45 66.7 1969 50 56.0 1970 58 62.1 1971 49 59.2 1972 65 75.4 1973 63 68.3 1974 62 71.0 1975 71 70.4 1976 55 65.5 1977 60 66.7 1978 45 64.4 1979 62 67.7 1980 49 73.5 1981 42 78.6 1982 69 65.2 1983 71 81.7 1984 59 79.7 1985 53 71.7 1986 47 66.0 1987 61 62.3 1988 39 69.2 1989 47 63.8 1990 30 50.0 1991 37 73.0 1992 44 65.9 1993 30 63.3 1994 25 52.0 Total 2,630 65.5
Source: Tables 7-12 and 7-13 of Epstein, Lee, et. al. (1996) The Supreme Court Compendium, (Washington D.C.:Congressional Quarterly).
Figure 5: Success Rate of the United States and Federal Agencies as Parties to a Case in Orally Argued Cases Before the Supreme Court, 1953-1994 Terms.
35 The success of the Office of the Solicitor General is apparent not just in summaries of all years between 1953 and 1999, but also in each individual term during the years 1950-1994 (Figure 5). The success of the Office of the Solicitor General never drops below 50% in any year and has been as high as 82%. The yearly success rates show no systematic trends over different time periods. For example there is no real change in the success rates of the Office of the Solicitor General between 1976-1980 when a Democratic president and Solicitor General were in the Executive Branch, while the Supreme Court was swinging towards the right. In fact three of the four years in which the Office of the Solicitor General had the least success, 1955, 1957 and 1990, were years during which there was a Republican president and a conservative Supreme
Court. It is true that during the early Nixon years, the Office of the Solicitor General was generally less successful before the liberal Supreme Court than the norm, and yet the success rate even during these terms did not fall below 56%.
The Office of the Solicitor General is extremely successful before the Supreme
Court. Research on the Office of the Solicitor General has attempted to explore this success by analyzing the different circumstances that might bear on that success. The following chapter will explore this research and attempt to show how the assumptions and findings of this line of research are incomplete and can be improved upon by focusing attention on the influence of the Office of the Solicitor General rather than simply on their success. This success suggests some theoretical implications for studying the Office of the Solicitor General and the Supreme Court generally.
36 CHAPTER 3
INTEGRATING THEORIES OF SUCCESS AND INFLUENCE WITH MODELS OF SUPREME COURT DECISION-MAKING
The success of the Office of the Solicitor General has been well documented by political scientists over the last twenty to thirty years. The scholars who have focused on the Office of the Solicitor General have theorized about why the Office is so successful.
The hypotheses fall into two categories.
The first category consists of factors which are related the Office of the Solicitor
General’s unique standing representing the government. The theoretical advantages include a special deference to the Office because it is more democratic or because of the trust and respect built up over time, or the overall quality of the briefs and arguments due to inside information from the cabinet departments, or respect for the Office’s restraint in carefully selecting only those cases which present the type of issues the Supreme Court thinks they should be reviewing, or finally, their ability to pick winners based on their special knowledge about the justices.
The second category of hypotheses consists of those factors that are outside the control of the Office of the Solicitor General and are thus successes not of the Office, but rather of something else which just happens to be a non-unique characteristic of the
Office. These hypotheses include things like deference to the President and President’s
37 party which may not be the same as deference to the Office of the Solicitor General, or the repeat player status of the arguing attorneys based on the number of previous cases of experience before the Court that any attorney could accumulate.
The literature on the Office of the Solicitor General attempts to explain the success rate of the Office by attributing that success exclusively to either the special characteristics of the Office or some external factors not within the control of the Office, with the single minded goal of showing why the Office of the Solicitor General wins more than the average litigant. This literature does not concern itself with the implications for the decision-making process of that success in terms of any influence on the Court exerted by the Office of the Solicitor General. Nor does this literature attempt to incorporate the success of the Office of the Solicitor General into the broader context of judicial decision-making literature as one might expect when a particular litigant appears to be winning a disproportionate share of the cases in which it is involved.
This chapter explores the success literature, showing its deficiencies as well as the useful hypothetical factors related to success. The purpose is to reveal how this literature is insufficient to address the important questions about United States Supreme Court decision-making that are implicated by the Office of the Solicitor General’s success, and also to develop the important kernels of insight which can be expanded and improved in a theory not of the success of the Office, but rather of the influence of the Office of the
Solicitor General. This chapter then explores the theories of influence as the bases for the success of the Office of the Solicitor General. It then proceeds to explain how the theories of success and influence can be integrated into a broader theory of Supreme
Court decision-making. Finally, this chapter lays out the models to be employed in 38 chapters 4 and 5 to test for the success and influence of the Office of the Solicitor
General as well as the sources of that influence.
A. SUCCESS
The Office of the Solicitor General is one of the most important actors before the
Supreme Court. In fact at least one author has labeled the Solicitor General “The Tenth
Justice” (Caplan, 1987, but see Clegg 1987). The Office of the Solicitor General is the representative of the United States government in almost all litigation before the United
States Court. Since the United States is one of the most frequent litigants in cases, the
Office spends a tremendous amount of time before the Court. However, research on the
Office of the Solicitor General has been relatively unfocused, and has not been thoroughly integrated into the judicial decision-making literature. In 1986, Jeffrey Segal attempted to open the debate about the influence of the Office of the Solicitor General so that this integration could occur. Segal states, “Our understanding of the Supreme Court will not be complete until the role of the Solicitor General is better understood. We are most in need of a decision-making model of judicial behavior that can incorporate the preferences of leading actors in the Court’s political environment.”(Segal 1986, 143).
While Segal and others (Salokar 1992, McGuire 1996, Caldeira and Wright 1998) have initiated the journey towards such a model, we are far from a model that fully understands the Office’s role, or incorporates these outside actors into our understanding of judicial decision-making. It is necessary, therefore, to first explore the role played by the Office of the Solicitor General in the government, and then understand the dynamic 39 relationship between the Court and the Office. Only by doing so will it be possible to refine our existing models of decision-making to reflect more accurately the real world of judicial decision-making.
Since the Office of the Solicitor General serves two masters, the president and the law, the Office of the Solicitor General must balance these competing duties before deciding upon a position in any brief filed with the Court. What is in the best interest of the president politically, may not be in the best interest of the law or the country. Given the representational paradox in the Office of the Solicitor General’s decision-making, it may be surprising to find such a high success rate for the Office of the Solicitor General especially if the political role of representing the interests of the President predominate.
To understand how the Office’s role has been analyzed, it is necessary to evaluate previous research by political scientists and to note the limitations of that research.
The successes of the Office of the Solicitor General have been addressed many times by scholars in the last thirty years (Caldeira and Wright 1988, Scigliano 1971,
Salokar 1992, Segal 1988,1990, Segal and Reedy 1989), but even these evaluations of success are somewhat problematic. First, as Salokar (1992) indicates, the Office of the
Solicitor General is not a pure advocate for the United States as we expect from most other attorneys before the Court. The Office of the Solicitor General will on occasion confess error to the Court (Rosenzweig 1994) and will often recommend that the Court take a case even if the Office of the Solicitor General feels that the position of the United
States will not carry the day. The Office of the Solicitor General does this because of its belief that making good law is as important as having the government win (Salokar 1992,
Days 1994, 1995, 1996a, 1996b, 1998; Elman 1987a, Sobeloff, 1951; Griswold 1969; 40 McCree 1981, Rankin 1998, Fried 1991, Lee 1986). As a result it may be reasonable to expect a different response by the justices to the arguments made by the Office of the
Solicitor General than to most other attorney advocates.
The majority of the work on the Office of the Solicitor General has focused on the case selection stage of the process and the filing of amicus briefs by the Office, where the
Office of the Solicitor General has the most discretion and thus can expect the most influence. But, this ignores decisions on the merits where even as a respondent/appellant the Office has greater success than other parties in the same position. I will first explore some of the arguments concerning the role of the Office of the Solicitor General during the case selection stage and as amicus curiae before exploring the work on briefs on the merits.
Success can be measured using a number of different mechanisms. Most researchers have employed a very simple test. If the United States was the respondent/appellee and the Court affirmed, or if the United States was the petitioner/appellant and the Court reversed or vacated, that is considered a victory. If the
United States was participating as an amicus curiae then a victory occurs when the side to which the United States lent its support received the requested relief. This classification of success does not allow for any comparison between the preferred outcome of the justices and the actual outcome of the case which is the key element in understanding whether the Office of the Solicitor General is influential. Further, this classification has largely ignored any differentiation based on the type of issues in a case with only a few exceptions.
41 Success means not only victory on the merits, but also preventing decisions of the lower courts from being overturned by avoiding Supreme Court review. As noted, much of the scholarship on the Office of the Solicitor General has concentrate either on the jurisdictional stage of the proceedings or on the role of the Office as an amicus curiae. In this respect jurisdictional decisions involving the United States can be a key indicator of success. This research can tell us a great deal about the Court’s perceived value of a case for review, but very little about why the Office of the Solicitor General is so successful at the merits stage, especially where the United States has lost at the jurisdictional stage, resulting in the Court’s review of the case on oral argument, but has eventually won the case, an outcome which happens more often than would be expected for the average respondent/appellee.
Similar motivations can apply to the decision to file an amicus brief. However, since the government’s interests are often not directly involved, the Office of the
Solicitor General has more discretion to employ political criteria rather than simply legal, and practical criteria. Because of this increased discretion, many commentators have chosen to evaluate the amicus side of Office of the Solicitor General participations (Segal
1986, 1988, Segal and Reedy 1988, O’Connor 1983, Puro 1981). It is claimed that the amicus briefs will provide better evidence of the Office of the Solicitor General’s ideological position and therefore can lead to a better understanding of the Office’s influence. However, even for amicus briefs, the scholars use evidence of success to claim that the Office of the Solicitor General exerts influence, without completing the link.
42 A number of important works have attempted to explain the success of the Office of the Solicitor General each implying influence on the Court from that success. One of the most extensive of these is Rebecca Mae Salokar’s The Solicitor General: The Politics of Law (1992). Salokar interviewed a number of present and past Office of the Solicitor
General staffers to determine how the process of picking cases for appeal proceeds. She found that a number of factors contribute to the decision depending on the case. These include whether there is a split in the circuit courts on the issue, whether the issue is so important to the government that a final disposition is needed, whether the case is winnable from the governments viewpoint, and whether the president’s agenda dictates proceeding with the case for political reasons. Salokar also analyzed amicus participation before the Court with similar results to those found by Segal (1986).
In the end Salokar’s analysis leads to a number of hypotheses about both the
Office of the Solicitor General’s role and the relationship with the Supreme Court.
Salokar finds that the role played by the Office of the Solicitor General is a restrained partisanship based on respect for the Court and backed by conceptions of executive power. With respect to the relationship with the Court she notes a great expertise in understanding the justices and what makes for a good case. However, she claims that there is also a mutual respect between the Office of the Solicitor General and the Court which results in some deference for the position espoused by the Office. This deference is hypothesized to work in one of five potential ways. These include: 1) deference to the president’s popular or democratic mandate, 2) the fact that some issues are so important to the functioning of the federal government that the Court will side with the government to ensure the governments continued viability, 3) compatibility of ideologies between the 43 executive and the Court, 4) the Court’s need of the executive for enforcement of its rulings, and 5) that the separation of powers has been blurred to the point that the Court is simply asserting its own power over individuals through the vehicle of the executive branch since they are both part of a federal government with institutionalized interests.
As good strategic actors the Office of the Solicitor General is able to act as a mediator between the executive and the judicial branches, one with mutual advantage to both sides’ interests. Salokar is not able to answer the questions about which hypothesis can explain the success of the Office of the Solicitor General, but she does raise some interesting points for consideration. Her study of success opens the door for analysis of influence.
Starting in 1986, Jeffrey Segal embarked on the process of evaluating the role played by the Office of the Solicitor General from many different angles, applying some theoretical bases to the perceived success of the Office. After including controls for the
United States as a party in his fact oriented models of Supreme Court decision-making and finding that the Office of the Solicitor General significantly impacted whether the petitioner/appellant or respondent/appellee won the case (Segal 1984), Segal began to explore the Office of the Solicitor General in its own right (Segal 1986, 1988, Segal and
Reedy 1988). In his first look directly at the Office of the Solicitor General, Segal (1986) chose to look at the ideological position of the Office. This work is a prime example of the exception to the general rule concerning the lack of differentiation based on type of case.
He starts with the simple correlations of ideological direction between Office of the Solicitor General briefs and individual justice support. Segal found that the success 44 of the Office of the Solicitor General as an amicus curiae filer on merits decisions was
consistent across six major subsets of cases (Criminal procedure, civil rights, first
amendment, economic regulation, judicial power, and federalism). Segal found that the
success rate in four of the six areas ranged from 72.7 percent to 74.5 percent. The final
two areas economic regulation (77.3 percent) and criminal procedure (80.6 percent) are
different enough to justify separate analyses or at the least controls. This leads to a
worthwhile comparison between the United States and the states as parties in criminal
related cases. If there is a general bias on the Court in favor of the government on
criminal matters, whether due to public opinion, personal ideology, or deference to the
other branches, it is likely to show up in a heightened success rate for both state
governments and the United States government, especially since the 1980's when the
Court has taken on a more federalist approach to the law, ensuring that the two levels of
government are roughly equivalent in the minds of the majority of the justices.
Segal also includes some initial breakdowns of his analysis for the success of the
Office of the Solicitor General as an amicus by President, for the two chief justices
during the study period (Warren and Burger) and for each Justice on the Supreme Court.
Thirteen out of twenty justices showed significant differences in treatments of liberal
versus conservative briefs. This finding is somewhat misleading as there were almost as
many significant results in the direction opposite of expectations as in the expected
direction. Further, for the chief justices Segal found that for the Warren Court the
ideological direction of the Office of the Solicitor General’s brief was relevant, but not for the Burger Court. Despite these mixed findings, Segal claims that party identification is the only variable needed to explain the success of the Office of the Solicitor General. 45 Segal concludes by noting that having the Solicitor General personally argue the case aided the government in winning. The ideological position taken by the Office of the
Solicitor General was not always a factor contributing to success when that position matched the Court’s ideological position as a whole and when it matched the individual justices, although ideological compatibility of the two positions was often a relevant consideration.
Segal’s findings suggest some interesting ways to conceptualize the relationship between the Court and the Office of the Solicitor General. It is obvious from these findings that when the position espoused by the Office of the Solicitor General matches that of the Court, there is an increased chance of winning, but the fact that regardless of the ideological position taken by the Office, the justices still supported the Office more than 50% of the time indicates that there are some other relevant factors which determine success. The fact that when the Solicitor General argues the case personally has an effect on the outcome indicates that there is a cue accepted by the justices about the importance of the case to the government regardless of the ideological direction of the requested action. These factors will become relevant in understanding not just the success of the
Office of the Solicitor General, but any potential influence as well.
Further analyses that include regressions integrating other potential hypotheses concerning the role of the Office of the Solicitor General would go a long way towards either supporting or refuting Segal’s general claim concerning the ideological connection between the Office and the Court. Segal does contribute some useful ways to conceptualize the relationships between the Court, president and Office of the Solicitor
General. Different results may be found for different issue areas, Solicitors General, 46 Presidents and Court compositions. These sub-analyses led Segal to do further work on the Office of the Solicitor General.
If the Office of the Solicitor General is advancing the president’s agenda, then there should be some evidence of congruence between the Office’s position and the
Court’s position at least for the justices appointed by the same president, and possibly even justices appointed by presidents of the same party. Jeffrey Segal (1988) provides us with a preliminary test of this assumption. Segal looks at support for the Office of the
Solicitor General’s position in amicus briefs. He claims that the position of the Office of the Solicitor General can not differ much from the position espoused by the Solicitor
General’s appointing president. He provides little proof of this assertion, but proceeds to claim that support for the president through the success of the Office of the Solicitor
General is akin to responsiveness to the president’s position. In this research he intends to show that the Court is democratic in its orientation because of the deference to the public will (Dahl 1957), or the president via the Office of the Solicitor General (Segal
1986).
Segal builds a model which links success to the appointment process. He hypothesizes that the success of the Office of the Solicitor General will be greatest among justices appointed by the then current president, followed by justices appointed by presidents of the same party, and will have the least support among justices appointed by opposition presidents. Segal found that while this is the case in some instances, it is significant for only a few justices, and is in the opposite direction from the expected outcome in an almost equal number of other cases. In the end Segal suggests that the
Court shows deference to the more democratic executive branch, generally, not deference 47 for the position of a president whose party matches the ideological preferences of the
Court.
In reaching this conclusion, he offers and rejects three alternate hypotheses without attempting to test the validity of any of these hypotheses. The first alternative hypothesis is that the Office of the Solicitor General acts strategically in only selecting cases that have a high probability of winning before the Court. Segal relies on work by
Ulmer and Willison (1985) to reject this possibility. Ulmer and Willison showed that there was no difference in the success of the Office of the Solicitor General between cases in which the Office chooses to file an amicus brief and those in which the Supreme
Court invites the Office to participate as an amicus. Because the Office of the Solicitor
General treats these invitations as if participation were mandatory, Ulmer and Willison claim that the Office should be less successful in those cases, a result they do not find.
As a result Ulmer and Willison, and, ultimately, Segal reject strategic case selection by the Office of the Solicitor General. I would argue that another test of this hypothesis can be employed by looking at merits decision differences between petitioner/appellant and respondent/appellee where the Office has no discretion on respondent/appellee cases and a great deal of discretion in petitioner/appellant cases.
The second hypothesis raised by Segal is that the expertise of the Office of the
Solicitor General gives the office an advantage as a repeat player. Segal finds expertise difficult to test directly. He therefore uses an indirect test of expertise. He claims that if the expertise of the Office were important, the Office of the Solicitor General should win more often when it participates in oral argument than when it does not (how this shows the relative expertise between the different parties is unclear, and will be challenged by 48 McGuire (1996)). He finds that the Office of the Solicitor General is actually less successful when it participates in oral argument than when it does not, thus rejecting the second hypothesis.
Finally, the third hypothesis he proposes and rejects is that as officers of the
Court, the Office of the Solicitor General is an impartial arbiter of truth and justice, and therefore the Court recognizing this role, gives more deference to the Office than to the other more adversarial parties and amici. Much of the evidence for this claim comes from former employees of the Office of the Solicitor General (Cox 1963, Puro 1971).
Segal goes on to state that “We no longer believe judges when they tell us they are impartial interpreters of law; perhaps we should not believe the Solicitors when they tell us they are impartial advocates of the same” (Segal 1988, at 148 fn. 6). With this statement he rejects the possibility of impartiality without any testing to determine whether there might be impartiality or whether there is at least perceived impartiality by
Court members. Impartiality in fact is not necessary so long as there is a perception of more impartiality by the Office of the Solicitor General than for other attorneys, at least where the justices value impartiality.
The evidence provided for and against each of the four hypotheses is shaky at best. Segal has not tested any of the three rejected hypotheses with the same detail he has given to the one supposedly supported hypothesis. But even this hypothesis has not been tested sufficiently. Segal again uses success and automatically presumes influence.
Further, the evidence he has provided shows that the success of the Office of the Solicitor
General can only be partly attributed to the ideological congruence between the president appointing the Solicitor General and the president appointing the Supreme Court Justice. 49 It is quite a jump to say that this provides evidence that the Court simply defers to a co- equal branch of government. It is possible to go beyond Segal’s approach to assess the relationship between the ideological position of justices and the ideological tenor of the
Office of the Solicitor General’s briefs. Decent measures of justice ideology are available and are generally considered to be adequate representations of the justices’ positions. Using the ideology of the Office of the Solicitor General’s briefs and comparing to the ideology of the Court is one step. Another would be to look for evidence that the Court is actually adopting the arguments of the Office’s amicus briefs over those of the parties. Further, the rejected hypotheses can be subjected to more empirical tests than Segal has provided. Finally, there are additional hypotheses that can explain the heightened success of the Office of the Solicitor General. These hypotheses will be explored below in the discussion of the theoretical influence of the Office of the
Solicitor General.
Segal’s third look at the Office of the Solicitor General returns to a fact based analysis of a specific issue area. Segal and Reedy (1988) move in this direction with their study of Office of the Solicitor General participation as amicus curiae in sex discrimination cases. They apply a fact based model to determine the effect of a Office of the Solicitor General brief on winning or losing after controlling for case facts. The case facts are intended to indicate any predisposition by justices for certain fact patterns.
They find that even controlling for the facts of the case, a brief filed by the Office of the
Solicitor General significantly increases the possibility of winning. This finding is supported in search and seizure cases by two articles, Segal (1984) and Segal and Spaeth
(1993), in all gender issue cases by Richard Pacelle (1997) and in death penalty cases by 50 Tracey George and Lee Epstein (1992). The models employed by the scholars who have explored the Office of the Solicitor General still do not have controls for the ideological positions of the justices included in the model. Finally, while this research is interesting, it ignores the success and influence of the Office of the Solicitor General in cases where the United States is a direct party to the suit.
McGuire (1996) took up Segal’s challenge to get past the difficulty of measuring
Office of the Solicitor General expertise through an evaluation of the Supreme Court level experience of the attorneys. McGuire compares the experience levels of the attorneys in the Office of the Solicitor General to the experience levels of the other party’s attorneys. McGuire found that while the Office of the Solicitor General is usually more experienced than the opposition, this is not necessarily the case. As a result when including both Office of the Solicitor General participation and the experience of the attorneys in a regression, McGuire found that the experience variable was significant and the Office of the Solicitor General variable was not, indicating that the special advantage of the Office is due to the expertise advantage enjoyed by the attorneys in the Office.
McGuire makes the claim that this success, attributable to the repeat player status of the
Office of the Solicitor General (Galanter 1974), indicates that the Office is influential with the Court because of the trust that repeat players acquire for their honesty in their briefs. The honesty is not voluntary, but rather induced by the fact that a lack of honesty could result in punishment by the Court the next time that attorney appears before the court.
McGuire’s expertise variable does not take into account the experiences in times outside the dataset that could bias the variable towards more expertise for the Office of 51 the Solicitor General. Further, many of the Supreme Court Bar with experience are former members of the Office of the Solicitor General, thus they may have a reservoir of trust before the Court which fades the more removed they are from their former employment. Finally, without understanding the level of acceptance of the attorney’s arguments by the Court, influence can not completely be assessed, only success, and even that is problematic.
The McGuire analysis is one of the few attempts to more closely analyze the success of the Office of the Solicitor General before the Supreme Court in merits decisions by including controls for the presence of the government and at least one other hypothetical reason (expertise) for the Office’s success. As a result of this more sophisticated approach it is possible to begin to build a model intended to address first the success of the Office of the Solicitor General, and eventually the influence of the
Office. The work on the success of the Office of the Solicitor General leads to a number of hypotheses and approaches to analyzing the potential influence of the Office. Thus, I next undertake to more concisely explain the relationship between success and the research on success and influence.
B. INFLUENCE
There is little doubt that there is something about the Office of the Solicitor
General or its choice of cases that contributes to the decision-making on the Supreme
Court, otherwise why is the Office so successful. This contribution may be in the form of actual influence or simple congruence. Without further analysis designed to distinguish 52 success from influence, it is impossible to tell what exactly that contribution is. One step in the further analysis of the success and influence of the Office of the Solicitor General is to include measures of the ideologies of the justices as indications of the most prominent aspect of the decision-making calculus. Other elements will attempt to explore the multitude of hypothesized reasons for the Office of the Solicitor General’s success.
A preliminary question must be answered here. Why might influence be expected? There are at least three reasons why influence by the Office of the Solicitor
General might be expected at least in some cases. First, parties seek review by the
Supreme Court in over 6000 cases each year. There is insufficient time to give to all cases. Even the cases chosen for oral argument number between 100 and 150. Legal research takes time, using the shortcut of starting research with the briefs of the attorneys is easier. And when there exists a repeat player like the Office of the Solicitor General who is a part of the same government entity a level of trust can be built. Second, it is reasonable to expect that not all justices will have a solid position on every issue to come before the Court. The justices, while relying on their ideological predisposition on issues that are important to them, may lack an opinion concerning what the best outcome would be on other issue areas. This is especially true in areas where special expertise is necessary, like foreign policy or patents. Finally, the Court has no power to enforce their own rulings, they need the Executive branch and the state governments to execute their decisions. As a result it is reasonable to expect that the opinion of the Executive and the states would carry some weight. If the Court continually ignores the position taken by the government, they may lose legitimacy. 53 Unlike the other potential influences on the Court’s decisions: public opinion
(Mishler and Sheehan 1993, Norpoth and Segal 1994, Flemming and Wood 1997) and
Congressional statements and threatened actions (Spiller and Gely 1992, Segal 1997); the executive branch has a direct line to the Court. Therefore, if there is influence on the decisions of the justices from some actor outside the judiciary it is most likely to manifest itself through the Office of the Solicitor General. Furthermore, it is the most obvious and direct way for influence to occur and therefore not as subject to problems of speculation and conjecture as studies of the influence of public opinion or Congress.
Influence is a reasonable possibility, but how can it be explained? As the literature on the success of the Solicitor General reveals, there have been many hypotheses attempting to explain the success of the Office of the Solicitor General before the Supreme Court. Figure 6 outlines these hypotheses grouping them into four categories: expertise, case selection, deference and congruence. Many of the hypotheses for the success of the Office of the Solicitor General listed in Figure 6 were succinctly summarized by Wrightsman (1999), extrapolating from Baum (1998).
54 The expertise of Office of the Solicitor General’s attorneys in appellate practice:
• Attorney experience advantage (Provine 1980, McGuire 1996). • Experience in framing issues to appeal to the justices (McGuire 1996). • The Office of the Solicitor General hires very good attorneys who are thus better at building very good legal arguments (Scigliano 1971). • Knowledge of Court rules allows for clearer presentation. • More and unique resources available through the departments and agencies, expertise on specific, technical issue areas (Scigliano 1971). • Perceived expertise so give greater weight to arguments (Scigliano 1971).
The Office of the Solicitor General knows how to pick good cases:
• The Office knows the ideologies of the justices and is able to seek review in only those cases that match the justice’s ideologies (Ulmer and Willison 1985). • The Office carefully screens cases for strong case facts (O’Connor 1983).
Deference to a political actor by the less democratic Court:
• Deference to the president’s political agenda or mandate (Segal 1986). • Deference to the Executive as the implementing agent (Puro 1981, Salokar 1992). • Deference out of gratitude for carefully selecting cases (Wrightsman 1999). • Deference to a more democratic branch to maintain legitimacy (Dahl 1957). • Deference to the country’s designated protector of legal principle (Cox 1963, Puro 1971, Salokar 1992). • Deference to the largest repeat player because they can trust the truthfulness of the presentation (McGuire 1996).
Congruence
• Match between the preferences of the Court and the preference of the President (Segal 1986, Scigliano 1971). • Match between the preferences of the Court and the preferences of the Office of the Solicitor General (Segal 1985).
Figure 6: Hypotheses Posited to Explain the Success of the Office of the Solicitor General before the United States Supreme Court.
55 There is the potential for influence based on the expertise in the quality of the position taken and the presentation of arguments. First, the Office of the Solicitor
General follows the Court Rules to the letter, whereas most other attorneys’ briefs shirk on this element. A brief that does not follow the rules may raise the ire of the Court in favor of the opposing party, or simply may detract from the arguments being presented.
Second, the Office of the Solicitor General has great resources at its disposal for legal research, including many unpublished government documents that may be helpful to their case. Finally, the experience of the office can lead to an understanding of how best to present arguments so that they carry the most weight with the individual justices of the
Court, both stylistically and based on content.
These expertise factors could also work in the minds of the justices to indicate that the Office of the Solicitor General as the representative of the government’s position has more expertise on matters of statutory interpretation rather than constitutional interpretation which the justices see as uniquely their authority. The same can be said for foreign policy that has been delegated via the constitution to the president almost exclusively or at least the president with the support of Congress. All of these variations in the way the Office of the Solicitor General is viewed lead to potential testing.
The Office of the Solicitor General could simply be better at picking either good
“test”cases or those they know are winners based on the ideologies of the justices. It is true that the Office has many potential cases to choose from each year, and among those cases are a few with case facts that would make it difficult for the Supreme Court to go against the government’s position. Relatedly, the Court and the Office’s or the
President’s ideological positions may simply match quite often given the nature of the 56 appointment process, and as a result what is success and appears to be influence is nothing more than equivalency of preferences, or congruence.
The success could be attributable to an abstract concept of deference to some government position based on the goal orientation of the Court or strategic considerations. This deference includes respect for the Office of the Solicitor General as a repeat player before the Court whose views are more easily accepted as truthful rather than pure advocacy. This could be true because of the need for respect and trust before the Court as the Office of the Solicitor General knows they will be appearing before the
Court again, and soon. This factor also contributes to deference to the Office General as the impartial representative of the law and what is best for the country legally rather than politically or personally. Office of the Solicitors General often are required to and do argue on behalf of points of law with which they personally or their appointing president do not agree (Salokar 1992). The Court is aware of this fact and may be willing to allow the Office of the Solicitor’s views more weight.
Other potential reasons for influence could be a simple and pure respect for a co- equal branch of government, whether this manifests itself due to strategic concerns, or because of the goal orientation of the justices, here the goal of legitimizing and thus building support for government action, does not change the nature of the influence. The
Court may look more favorably on the position taken by the Office of the Solicitor
General out of gratitude for picking cases carefully, and not often wasting the Court’s time.
The influence of the Office of the Solicitor General could be in terms of policy positions based on the president’s agenda, or the independent position of the Office of the 57 Solicitor General, or derived from the strength of the legal arguments made by the Office of the Solicitor General, or because the Office is better at picking cases for Supreme
Court review, or even a more abstract notion of respect or deference to a co-equal branch of government. Until we can look deeper into the role of the Office of the Solicitor
General to determine the reasons for the office’s success, and whether that success is an indicator of actual influence, we can not understand the implications for Supreme Court decision-making.
Any of these perspectives could explain the success of the Office of the Solicitor
General, however not all imply influence by the Office. These potential sources of influence lead us to a number of hypotheses that can be explored to probe the influence of the Office of the Solicitor General. Sorting out this mix of arguments is an important step toward understanding the role played by the Office of the Solicitor General.
Integrating the ideas presented by these scholars can give us further insight into the
Court’s decision-making processes.
These hypotheses suggest that a model can be developed to incorporate more than whether the Office of the Solicitor General is involved in a case or whether the expertise of the attorney is driving the success. However, they also raise doubts about whether the traditional approach of looking at whether the petitioner wins or loses is sufficient to allow for complete testing of the hypotheses. I will therefore, take a look at this traditional success approach to modeling the role of the Office of the Solicitor General as a precursor to exploring a new form of modeling the role of the Office that brings the literature in line with the Supreme Court decision-making literature by evaluating the potential influence of the Office of the Solicitor General rather than simply the success of 58 the Office. As the McGuire work shows, a simple model controlling for whether the
Office of the Solicitor General wins or loses is insufficient for understanding the role of the Office. Integrating the decision-making literature with the Office of the Solicitor
General literature allows me to go the next step and explore any influence exerted by the
Office on the Supreme Court.
The Office of the Solicitor General is only one of many actors that can influence the Supreme Court, but it is the one actor with a proven track record of success indicating that there is some special relationship between the Court and the Office of the Solicitor
General. This relationship has been hypothesized as influence in a myriad of success research with few empirical conclusions drawn about the nature of the relationship, only assumptions without testing. Influence suggests an impact on the decision-making of the justices. All of this together suggests an approach to studying the Office of the Solicitor
General that can integrate the decision-making literature and the success literature into a coherent whole with the result being better measures of both the Office’s role and
Supreme Court decision-making.
This chapter next addresses what can be done to more fully explore the role of the
Office of the Solicitor General in the broader context of judicial decision-making theory.
It explains how the prior literature on the Office of the Solicitor General can inform a more detailed approach to studying the role of the Office. This literature, while insufficient to address the broader questions of influence succeeds in two ways. First, it statistically solidifies the premise that for whatever reason, be it experience, deference to a co-equal branch, or case selection, the Office of the Solicitor General plays a special role before the Supreme Court, one that leads to a much greater success rate than the 59 average litigant. Second, this literature provides ample support for a number of hypotheses about how the Office of the Solicitor General might be influencing the decision-making of Supreme Court justices.
Any attempt to build a theory of Office of the Solicitor General influence on the
Supreme Court must take these success studies into account. When this literature is combined with the decision-making literature, it is possible to create an integrated theory of decision-making that accounts for at least one actor outside of the Court: the Office of the Solicitor General.
C. SUPREME COURT DECISION-MAKING
The Supreme Court decision-making literature in recent years has moved towards an ideologically based model of the Court’s decisions. This approach has largely left factors other than ideology out of the equation explaining them away as incidental and affecting decision-making only at the margins. This is not to say that all scholars have rejected legal or other goals as relevant factors in decisions, but that the scholars recognize that political ideology is a primary if not potentially the overriding factor.
Some scholars have posited strategic reasons for incorporating other factors into models of decision-making. Further, still others would employ a justice by justice approach noting that the goal orientations of individual justices vary such that one justice may value legal considerations more than others. The result of the Supreme Court decision- making literature is that scholars get into debates about the weight, if any, to be given factors other than ideology. 60 Because of the importance of the role of the Office of the Solicitor General, many of the scholars who study Supreme Court decision-making have attempted to incorporate controls for the potential influence of the Office into their models. Some scholars claim that the impact of the Office of the Solicitor General or any other actor for that matter is incidental when compared to the impact of the ideology of the Court. Thus often a
variable indicating whether the Office of the Solicitor General was on the winning side is
included, but the results are often ignored as relatively insignificant.
Such is the case with the current seminal work on Supreme Court decision-
making, The Supreme Court and the Attitudinal Model by Segal and Spaeth (1993).7
Segal and Spaeth build their Attitudinal Model of Supreme Court decision-making on the premise that the policy preferences of the justices are the sole or at least overriding determinants of judicial decisions. They do recognize the unique success of the Office of the Solicitor General at both the jurisdictional and merits stage whether as an amicus or party. In their model of search and seizure cases that controls for case facts in determining the conservative versus liberal votes of the justices, they added a second control for the United States as a party. The United States variable is significant indicating that even after controlling for case facts the presence of the Office of the
Solicitor General has an impact on the vote decisions of the justices resulting in a .20 increase in the probability that a search will be found to be reasonable. However, the authors fail to go the next step and determine whether the variable for the United States as a party remains significant when they also control for the attitudes or personal policy
7The updated version of the Attitudinal Model (Segal and Spaeth 2002) has nothing new to add about the Office of the Solicitor General as a part of Supreme Court decision-making. As a result I will focus on the original presentation of the model. 61 preferences of the justices. They do control for differences in case facts as an indicator of justice preferences. Furthermore, we do not know anything about the position taken by the Office of the Solicitor General, only that the United States was a party to the suit.
Despite these findings, the authors reject external actors’ influence on the decisions of the justices. They note “The two aspects of the attitudinal model, facts and attitudes, are crucial to explaining the votes of the Supreme Court, both separately and in conjunction with one another. Conversely, virtually no support is found for non- attitudinal factors, such as judicial restraint, public opinion and interest group activity.”8
While this assumption may eventually prove to be valid, the authors have provided little support for the conclusion at least with respect to the executive branch. A second analysis is conducted to determine whether the individual justices on the Court support the Office of the Solicitor General even when the Office of the Solicitor General’s brief supported the opposite view from that of the justice. They found that the support was largely non-existent between 1983-1988 with only 3 justices supporting the Office of the
Solicitor General over 50% of the time no matter the position taken.9 This might suggest that the Office of the Solicitor General has little influence on individual justices.
However, coupled with their finding for the Court as a whole, this suggests that at least the median and other key justices are swayed often enough to significantly affect case outcomes on a regular basis. This still leaves the question of whether the Office of the
Solicitor General is influential largely unanswered. Incorporating the influence and not just the success of the Office of the Solicitor General into models of Supreme Court
8Segal and Spaeth (1993) at p. 255.
9Segal and Spaeth (1993) at pp. 313-314. 62 decision-making seems to be an essential next step in developing a comprehensive model of Supreme Court decision-making.
Epstein and Knight (1998) give the Office of the Solicitor General very little discussion or analysis. Epstein and Knight have noted the success of the Office of the
Solicitor General, but do not see any way that the success contradicts their strategic approach to judicial decision-making, and in fact, actually supports a strategic model according. The influence the Office of the Solicitor General exerts may be attributable to the fear of retribution by the executive branch that the courts need to enforce their decisions. They state “After all, why would the justices read U.S. petitions with ‘special care’ if they were not concerned with the response a denial might engender?”10 From this it is possible to conclude that Epstein and Knight view deference to the enforcement agent as the only possible reason for the success of the Office of the Solicitor General, and thus the only way the Office is influential. This discarding of any other possible influence on the Court seems somewhat limited given the proposed alternate hypotheses found in the Office of the Solicitor General success literature. Alternatively, the influence of the Office could be an indication of strategic action only part of the time.
In other instances, it may be an indication that the justices take legal arguments seriously. If this is true, then the justices can be persuaded to follow arguments that are in the best interests of consistency and accuracy in the law. As Baum (1997) has indicated, this would provide support for the hypothesis that justices do not simply decide cases based on their policy preferences, but rather based on a mix of goals which each justice must individually weigh in making their decision. These factors include a mix of legal-
10Epstein and Knight (1998) at p. 87. 63 accuracy and consistency; strategic- legitimacy before the executive and legislative branches and the public; workload- the need to be able to give the attention each case deserves, and ideological considerations. The influence of the Office of the Solicitor
General is suggested to implicate a number of goals depending on the hypothesis presented. The explanations outlined in Part B of this chapter can be viewed in this context. The gratitude for careful case selection is posited by Baum as a workload consideration, while the expertise hypotheses relate to legal goals. Only congruence of position relates to an ideological goal, and that is not influence.11 Baum states that the research on the Office of the Solicitor General “indicates that, when other factors are held constant, the federal government still fares considerably better than other litigants. This finding suggests that the federal government’s success reflects real influence and not just the cases it brings or the position it takes.”12 Baum further notes the explanation provided by McGuire as one of the few attempts to explain the influence of the Office of the Solicitor General and thus integrate the Office of the Solicitor General into the decision-making literature.
Determining whether influence is an indication of strategic action or a mix of goals may not be possible without talking to the justices. However, it at least indicates that the attitudinal model which is devoid of external influences on the justice’s decisions is incomplete. Talking to the justices may not be necessary if models of the influence of the Office of the Solicitor General can be built which can differentiate at least some of the potential influence factors. Unfortunately, some of the potential influence factors are
11Baum (1997) at pp. 52-53.
12Baum (1997) at p. 53. 64 intangible and abstract concepts which may not lend themselves to empirical testing.
However, the influence of the Office of the Solicitor General over and above the impact of case selection and ideological congruence is sufficient to say that influence is actually occurring and is relevant to the decision-making process. Therefore, a modification of the attitudinal model to recognize the influence of the executive branch, at the very least, would be required. Office of the Solicitor General influence suggests that it is worthwhile to continue to explore the influence of other external actors like Congress13 and public opinion. Also the door remains open for the inclusion of precedent or other legal norms into the decision-making calculus.
D. MODELS AND METHODS
Now that success, influence and Supreme Court decision-making have been understood as relating to each other it is necessary to explain how the hypotheses and theories can be tested by building models which can address the influence of the Office of the Solicitor General, if any at all, on the decisions of the Supreme Court. The research evaluates the role of the Office of the Solicitor General when the United States is a party to a suit and when the Office voluntarily chooses to or is invited to participate as an amicus curiae. I have limited the analyses to the merits stage of cases. Finally, I include all decisions whether summary or otherwise, in which the Office of the Solicitor
General participated.
13There is already some evidence that the Court at least cares what Congress thinks about their decisions. If they did not care and wished only to push their personal agendas, then why would they be willing to invite Congress to change the law to close loopholes which the Court does not feel justified in closing themselves (Hausegger and Baum 1999). 65 The research proceeds in three stages. The first stage builds on prior research
concerning the success of the Office of the Solicitor General using the same dependent
variables and both retests prior research and introduces variables designed to get at
influence. To create a baseline of comparison to previous research and for the model of
influence, a simple determination of the success of the Office of the Solicitor General is
necessary. The next stage analyzes as many of the potential influences on the Court in a
regression model to attempt to isolate the significance of the Office’s influence. The
third stage of the analysis incorporates a number of variables designed to assess at least
those sources of influences that are able to be quantified with breakdowns of the data into
relevant subsets for more detailed analysis.
While the focus of each of these stages is the Office of the Solicitor General, it would be a waste of time not to evaluate the influence of the other participants before the
Court. In doing so, I also incorporate controls for the influence of other governmental actors to determine whether the repeat player proposition is justified for these other actors. Further, other breakdowns of the data, and analyses: by president, by Solicitor
General, and by time period are reasonable and potentially worthwhile extensions of the base analysis.
The previous researchers’ success analyses lead to measures of influence by the
Office of the Solicitor General. Influence is more elusive than success. It can be captured at least in part by proper modeling. More difficult is determining the nature of the influence of the Office of the Solicitor General. This can be done first by adapting existing models to take account of influence rather than success. These analyses may not be able to differentiate between the potential sources of influence, but they most 66 assuredly can provide insight into whether there is influence. One important element to the determination of influence is making sure to set up the measure of Supreme Court justice ideology to measure the ideology for all cases and not just for the cases in which the Office of the Solicitor General participates. If influence is the ability to make someone act as one wants them to act rather than the way they want to act, then there should be a difference between the ideology of the justices in cases involving the Office of the Solicitor General and cases not involving the Office.
The first analyses conducted are designed to track the success research. Here I begin be re-analyzing Kevin McGuire’s findings concerning the experience of the attorneys as compared to Office of the Solicitor General influence. I have also conducted an analysis of the success rate of the Office of the Solicitor General, building in other variables designed to assess potential influence. I explain why these results are not presented, but are useful as a bridge to the more important analyses in the last two stages.
The second stage analyses are designed to be comparisons with works already attempting to explore the influence of the Office of the Solicitor General. Those works tend to focus on a single dimension (i.e. expertise, the simple presence of the Office of the Solicitor General, etc.) controlling for such things as ideology. This analysis combines the different analyses to attempt to paint a more complete picture of the role played by the Office of the Solicitor General as compared to other participants. This means that I must first look beyond the Office of the Solicitor General and build a model that attempts to assess all of the potential influences on the Court’s decision-making. As a result variables for the other external actors are included as well as variables to assess
67 the influences on the justices internally, like policy preferences, legal doctrine, and the goals of the justices.
The final stage analyses are designed to explore any differences in the treatment of the Office of the Solicitor General for specific theoretically important subsets of the data. These include Court related, Politics related, case related and Office of the Solicitor
General related treatments. The success and the influence of the Office of the Solicitor
General would presumably not be static, as different Office of the Solicitors General followed their President’s agenda more or less closely.14
The models I employ can be explained in the context of the theoretically important potential influences on the Court, whether from the federal government or as others have posited from Congress, public opinion, or the states. I will first explain my choice of dependent variables, and then proceed to operationalize the independent variables included in the various models.
1. DEPENDENT VARIABLES
In previous research on Supreme Court decision-making both the identity of the winning party (respondent v. petitioner) and the ideological direction of the winning outcome (liberal v. conservative) have been used to analyze decisions. The winning party has been predominant in the Office of the Solicitor General success literature. Each has its merits and deficiencies. Using respondent/petitioner has the advantage of being
14See Lincoln Caplan’s The Tenth Justice (1988) asserting that the Reagan Solicitors General were significantly more partisan in their approach than previous Solicitors General resulting in less respect for their position from the Court. 68 simple and objective allowing for the use of all cases since all are capable of classification. Further, when testing the impact of expertise this analysis is somewhat simpler. However, using respondent/petitioner creates a more indirect analysis of ideology because there is nothing to indicate that any ideology would be more favorable to petitioners over respondents or vice versa. The result is that when the independent variable includes an ideological component there must be an interaction with the ideological position of the petitioner and respondent to allow that ideological variable to have any substantive meaning in the context of the petitioner winning.
A much more direct way to analyze the influence of the Office of the Solicitor
General and still control for the ideologies of the justices is by couching the dependent variable in terms of ideology. One difficulty with using the ideological variable is that some of the categories of the dependent variable (ideological determination based on the decisions in some issue areas) have been coded liberal or conservative based on whether the winning party was the government, a factor which would mean that the dependent variable would be defined based on one of the independent variables. This may require the exclusion of a subset of the cases to correct for this problem or the recoding of these issue areas using ideological criterion other than whether the government won.
Using the ideological variable for the primary influence models has the merit of being a very simple, straight-forward test of the primary issue at this stage: whether there is influence distinguishable from the ideological predispositions of the Court. When both the dependent and independent variables are ideological in nature, then it becomes very straight-forward to determine which independent variables cause liberal v. conservative outcomes. Therefore, although using the ideological dependent variable is more 69 subjective, and may result in the loss of a few cases in each term, I employ the ideological variable for the majority of my influence analysis.
Dependent Variable Coding Party Based 0=Respondent wins 1= Petitioner wins
Ideology based (Full Court 0=Conservative position wins & Individual Justices) 1=Liberal position wins
Office of the Solicitor General 0=SG loses Congruence 1=SG wins
Figure 7: Dependent Variables Employed in Chapter 4 and 5 Models.
The first of the three dependent variables (Figure 7) is formulated as whether the petitioner/appellant or respondent appellee won the case by having their requested relief granted. This dependent variable is only used in retesting the success of the Office of the
Solicitor General in a comparable way to previous literature, and as a full model bridge between the previous literature and the ideologically based influence models I use in the majority of the analyses. The second dependent variable is a purely ideological variable tapping whether the liberal or conservative position prevails in a case. This dependent variable is employed in all of the influence models in Chapter 5 except the analysis of
Office of Solicitor General only cases. The variable is modified for the individual justice analyses to be the ideological position of that justice in the given case. In the Office of the Solicitor General only analysis I revert back to a dependent variable similar to the petitioner v. respondent winning variable. The dependent variable in this model is
70 whether the Office of the Solicitor General won or lost the case. The formulation of this dependent variable is dictated by the analysis of congruence in the model, since whether congruence leads to success is posited as hypothetically related to influence. As the dependent variables have only values of 0 and 1, it is appropriate to employ logit or probit analysis. All analyses will employ these maximum likelihood techniques. In order to be able to interpret the results, predicted probabilities based on the outcomes will be employed and reported.
2. INDEPENDENT VARIABLES
The independent variables in these analyses must control for differences between the Office of the Solicitor General and other parties, as well as other factors that could account for any differences in influence. A list of the variables that will be employed in these analyses along with a description of the variable and the coding scheme for each of the variables is provided in Figure 8. A more detailed explanation of the variables themselves and the choice of the variable as it relates to the hypotheses follows the variable list. These variables are intended to determine whether the independent influence of the Office of the Solicitor General is still present after controlling for the other factors that may help to explain any influence. The independent variables are designed to act as controls for the factors that have been shown to either influence the Court’s decision to vote in a certain way, or at least are factors that strongly predict outcomes. Figure 8
71 Independent Variables
SG Petitioner-Variable indicating whether the Office of the Solicitor was the petitioner in the case; Model-McGuire 1, SG only; Hypothesis-Success only; 0=SG respondent or no SG, 1=SG petitioner.
SG Respondent-Variable indicating whether the Office of the Solicitor was the respondent in the case; Model-McGuire 1; Hypothesis-Success only; 0=SG petitioner or no SG, 1=SG respondent.
SG Party-Variable indicating whether the Solicitor General was a party to the case; Model-McGuire 2; Hypothesis-Success only; -1=SG respondent, 0=no SG, 1=SG petitioner.
Experience Difference-Variable indicating the difference of prior oral argument experience at the time a case is decided between the two sides in a case; Models- McGuire 1 & 2, All Influence; Hypothesis-Expertise; positive=liberal advantage, negative=conservative advantage.
SG Party/Experience Difference Interaction-Variable interacting SG Party with Experience Difference; Model-McGuire 2, Hypothesis-Expertise.
Court Ideology (Voting Score)-Alternate court ideology variable number 1 representing the ideology of the median justice on the Supreme Court Models-All Influence, Hypothesis-Congruence; Proportion of liberal votes.
Court Ideology (Segal Cover Score)-Alternate court ideology variable number 2 representing the ideology of the median justice on the Supreme Court; Model- Chapter 4 Influence, Hypothesis-Congruence; Segal-Cover scores.
Court Ideology (Dynamic Ideology Score)-Alternate court ideology number 3 representing the ideology of the median justice on the Supreme Court; Model- Chapter 4 Influence, Hypothesis-Congruence; Bailey and Chang (2000) ideology score adjusted for changes over time.
Figure 8: List of all Variables used in models in Chapters 4 and 5 Including Indication of Model, Hypothesis, and Coding.
Figure 8 continued on next page
72 Figure 8 continued
SG Ideology (Liberal)-Variable indicating when the ideological position of the Office of the Solicitor General was liberal; Models-All Influence, Hypothesis-SG influence; 0= no SG or conservative SG; 1= liberal SG.
SG Ideology (Conservative)-Variable indicating when the ideological position of the Office of the Solicitor General was conservative; Models-All Influence, Hypothesis-SG influence; 0= no SG or liberal SG; 1= conservative SG.
Petitioner Ideology-Variable indicating whether the petitioner/appellant adopted a liberal position and the respondent/appellee adopted a conservative position; 0= petitioner conservative, respondent liberal; Models-All Influence, Hypothesis- Prefer to take cases to overturn lower court; 1= petitioner liberal, respondent conservative.
Public Opinion-Variable indicating the ideological position of the general public at the approximate time of the case; Models-All Influence, Hypothesis-Public opinion influence; Stimson (1999) Public Mood proportion liberal.
Congress-Variable indicating the ideological balance in the US Congress on a one Congress lag; Models-All Influence, Hypothesis-Congress influence; Poole and Rosenthal (1997)DW-Nominate score for median member of each house, averaged for full Congress score.
State Ideology (Liberal)-Variable indicating when ideological position of the state government was liberal; Models-All Influence, Hypothesis-State government influence; 0= no state government or conservative state government; 1= liberal state government.
State Ideology (Conservative)-Variable indicating when ideological position of the state government was conservative; Models-All Influence, Hypothesis-State government influence; 0= no state government or liberal state government;1= conservative state government.
SG Amicus (Liberal)-Variable indicating whether the Office of the Solicitor General filed a liberal amicus brief in the case; Models-All Influence, Hypothesis-SG influence; 0= no SG or conservative brief; 1= liberal brief.
Figure 8 (Continued): List of all Variables used in models in Chapters 4 and 5 Including Indication of Model, Hypothesis, and Coding.
Figure 8 continued on next page
73 Figure 8 continued
SG Amicus (Conservative)-Variable indicating whether the Office of the Solicitor General filed a conservative amicus brief in the case; Models-All Influence, Hypothesis-SG influence; 0= no SG or liberal brief; 1= conservative brief.
SG Ideology (Liberal)/Experience Difference Interaction-Variable interacting SG liberal ideology with Experience Difference; Model-Chapter 4, Hypothesis- Expertise.
SG Ideology (Conservative)/Experience Difference Interaction-Variable interacting SG conservative ideology with Experience Difference; Model-Chapter 4, Hypothesis-Expertise.
Liberal SG & Democrat President-Variable indicating when the case included a liberal Office of the Solicitor General position when there is a Democrat president; Model-Individual justices; Hypotheses-Congruence; Presidential deference; 0=no SG, no Democrat president or no liberal SG, 1=liberal SG, Democrat president.
Liberal SG & Republican President-Variable indicating when the case included a liberal Office of the Solicitor General position when there is a Republican president; Model-Individual justices; Hypotheses-Congruence; Presidential deference; 0=no SG, no Republican president or no liberal SG, 1=liberal SG, Republican president.
Conservative SG & Democrat President-Variable indicating when the case included a conservative Office of the Solicitor General position when there is a Democrat president; Model-Individual justices; Hypotheses-Congruence; Presidential deference; 0=no SG, no Democrat president or no conservative SG, 1=conservative SG, Democrat president.
Conservative SG & Republican President-Variable indicating when the case included a conservative Office of the Solicitor General position when there is a Republican president; Model-Individual justices; Hypotheses-Congruence; Presidential deference; 0=no SG, no Republican president or no conservative SG, 1=conservative SG, Republican president.
Figure 8 (Continued): List of all Variables used in models in Chapters 4 and 5 Including Indication of Model, Hypothesis, and Coding.
Figure 8 continued on next page
74 Figure 8 continued
Court Congruence-Variable indicating the level of congruence between the Office of the Solicitor General’s position and the Court’s position; Model-SG only; Hypothesis-Congruence; distance between the position of the Office of the Solicitor General and the Court.
Public Opinion Congruence-Variable indicating the level of congruence between the Office of the Solicitor General’s position and the public mood; Model-SG only; Hypothesis-Congruence; distance between the position of the Office of the Solicitor General and public.
Congressional Congruence-Variable indicating the level of congruence between the Office of the Solicitor General’s position and the Congress’s ideology; Model-SG only; Hypothesis-Congruence; distance between the position of the Office of the Solicitor General and the Congress.
Presidential Congruence-Variable indicating the level of congruence between the Office of the Solicitor General’s position and the President’s ideology; Model-SG only; Hypothesis-Congruence; distance between the position of the Office of the Solicitor General and the President.
State Government Opposition-Variable indicating when the Office of the Solicitor General is opposed by a state government; Model-SG only; Hypothesis- Deference; 0=no state government opposition, 1=state government opposition.
SG Experience Advantage-Variable indicating when the extent of any advantage or disadvantage in attorney experience; Model-SG only; Hypothesis-Expertise; positive=liberal advantage, negative=conservative advantage.
Statutory Decision-Variable indicating whether the issue in the case was statutory or constitutional; Model-SG only; Hypothesis-Expertise; 0= constitutional; 1= statutory.
Foreign Policy-Variable indicating whether the issue in the case was related to foreign policy concerns or all other concerns; Model-SG only; Hypothesis-Expertise; 0= not foreign policy; 1= foreign policy.
Figure 8 (Continued): List of all Variables used in models in Chapters 4 and 5 Including Indication of Model, Hypothesis, and Coding.
Figure 8 continued on next page
75 Figure 8 continued
SG Filed Cases (Party)-Variable indicating the number of cases filed as a party, whether granted certiorari or not; Model-SG only; Hypothesis-Case Selection; Total number of cases where the Office of the Solicitor General asked the Court to review the case.
SG Filed Cases (Amicus)-Variable indicating the number of cases filed as an amicus curiae; Model-SG only; Hypothesis-Case Selection; Model-SG only; Total number of cases where the Office of the Solicitor General filed an amicus curiae brief at both the merits and jurisdictional stages.
SG Invited-Variable indicating whether the Office of the Solicitor General was invited by the Court to file an amicus brief; Model-SG only; Hypothesis-Case Selection; 0= no invitation; 1= invitation.
Figure 8 (Continued): List of all Variables used in models in Chapters 4 and 5 Including Indication of Model, Hypothesis, and Coding.
76 provides a comprehensive list of all variables used in the various analyses in Chapters 4 and 5.
The first set of variables are designed to retest the McGuire (1996) hypothesis that the experience advantage of the Office of the Solicitor General drives the success of the Office. This hypothesis is tested with a simple model with the dependent variable as the petitioner versus respondent winning and independent variables to measure the position of the Office of the Solicitor General, respondent or petitioner, and the experience advantage of the Office. A second model is employed to determine whether there is an added advantage beyond the standard attorney advantage by interacting the experience advantage variable with the Office of the Solicitor General as a party variable.
Three of these variables are also used in other models as well. The experience difference variable is used in the primary influence models, the experience difference/Office of the
Solicitor General interaction is used in one of the influence models and the Office as a petitioner is used the Office of the Solicitor General only model.
Court ideology is the first of the influence model variables. This variable is necessary to control for the possibility that winning is tied up exclusively with the ideologies of the justices (Attitudinal Model argument) through the Office of the Solicitor
General picking cases where the position of the government matches the position of the
Court. If the Attitudinal Model is correct, then this should be the only significant variable in the entire model as nothing else dictates Supreme Court decision-making if the model controls for ideology. If other variables are significant beyond the ideologies of the justices, then this significance indicates change in the final decision beyond the personal preferences of the justices, or simply put influence. 77 I employ three separate ideology variables as a robustness check on the findings since each has certain advantages and disadvantages. The three variables are a voting score, Segal/Cover scores and an ideology point score. The voting scores simply calculate an average liberal vote score for each justice. From this then the median justice vote score for each case is calculated and used in the models. This measure lacks the independence from the voting record of other measures, but has been shown to still be an effective measure of Supreme Court ideology. A second measure for ideology comes from Segal and Cover (1989), revised and updated Segal, et al. (1995). This measure creates a liberalism score based on editorials in newspaper articles about the confirmation of a justice. As a result the measure is relatively independent of the later actions of the justices. However, it relies on journalistic interpretations of the justices’ ideologies, and is based on a very limited number of articles in many cases. The third measure I employ is a newer measure which is not yet widely accepted derived by Bailey and Chang (2001) using the voting score method but adjusting the scores each term for changes in a justice’s ideology over time. This adjustment is incorporated to accommodate justices like Harry Blackmun who had a significant change in his views beginning in the late seventies. This measure also has the benefit of being consistent in its formulation with measures of the president and Congress.
Based on an analysis of these measures and given that my research is trying to determine whether the Office of the Solicitor General is influencing the votes of the justices, a new measure independent of the votes in cases would be useful. Such a measure will not be explored in this dissertation, but is being developed for future use. If the votes in cases reflect some influence by either the Office of the Solicitor General or 78 any other actor, then using a voting score as an indicator of Supreme Court ideology is
potentially problematic. Such a measure would include all influences as if they were part
of the justice’s ideology. Therefore, a measure like Segal/Cover scores that is
independent of the votes of the justices is necessary as a check on the influence of the
Office of the Solicitor General. Segal, Timpone and Howard (2000) have developed a
measure of the President’s ideology using a method that can be applied to the Supreme
Court. They survey political scientists who study the presidency asking those scholars to
evaluate the modern presidents’ ideologies. A similar measure surveying judicial
scholars can be developed for the Supreme Court. Such a measure would still be limited
because the justices do not completely control the mix of cases that come before the
Court, but would provide a level of independence that is useful when assessing influence beyond ideology. In the meantime for this dissertation, the use of three measures, at least one of which is independent of votes, provides a reasonable check on whether the Office
of the Solicitor General’s success is based on congruence with the ideology of the Court.
To determine whether the success of the Office of the Solicitor General is based
on congruence or some real influence by the Office of the Solicitor General the ideology
of the court must be checked against two variables designed to assess the Office of the
Solicitor General’s position. The Office of the Solicitor General ideology, liberal and
conservative, variables will only be significant if, after controlling for Court ideology and
any other explanation of the success of the Office of the Solicitor General, there is some
independent impact, dare I say influence, exerted by the Office of the Solicitor General
on Supreme Court decisions. It may have been possible to employ only one variable
indicating liberal position, no Office of the Solicitor General, and conservative position. 79 However, doing so makes an assumption about the equivalency of treatment of a liberal position versus a conservative position, which is something I am not willing to do. In fact the data bear out this conclusion. When a joint hypothesis test is run on the two variables, I find that they are significantly different in magnitude, indicating that the use of two variables rather than one is beneficial. These first three essential variables, Court ideology, and Office of the Solicitor General ideology, create the base of the analyses of the Office of the Solicitor General influence. Relatedly, I have included two variables to test the influence of the Office of the Solicitor General as amicus curiae that are formulated in the same way as the above Office ideology variables.
Research has consistently shown that the Court tends to take cases it wishes to overturn, therefore, a control for the position taken by the petitioner is necessary.
Without controlling for the bias in favor of petitioners, any finding of influence by the
Office of the Solicitor General could appear stronger than it actually is where the government is on the petitioner’s side. However, the preliminary statistics in Chapter 2 reveal that this is unlikely to be the case since the Office of the Solicitor General still wins a majority of its cases even when on the respondent side.
Other external influences have been said by some authors to influence the Court’s decision-making, although others dispute this claim. Public opinion and Congress are the most often explored external actors. To determine whether public opinion influences decisions some measure of public mood must be included. The Stimson (1999) measure has been shown to be a reasonable indicator of the public’s opinion on certain key issues.
Therefore, since the goal of this project is not to create a newer, better measure of public
80 opinion, I employ this measure lagging it one year, representing a reasonable time for the
Court to observe the public mood.
By the same token Congress may exert some influence over the decisions of the
Court. The threat of sanctions that would effectively change the jurisdiction or composition of the Court, and the ability to modify statutes to correct for faulty interpretation by the Court require that potential influence by Congress be included in the model. Therefore, a measure that can tap the ideology of the median member of Congress can be employed as an indicator of the preferences of Congress. Such a measure can be found by taking the average of the median House and median Senate score based on
Poole and Rosenthal (1997) DW-Nominate scores and then lagging one year to allow the
Court to have time to observe the preferences of the Congress.
The repeat player phenomenon is evaluated a variable that captures the difference in experience between the opposing sides, liberal versus conservative, in the case. This variable is designed to re-evaluate the McGuire (1996) expertise hypothesis. The experience level of the attorney is calculated by keeping a running total of the number of cases argued before the Supreme Court from the attorney’s first argument (coded 1), through the time the relevant case was actually argued. This new measure includes all prior experiences of the attorney arguing the case, not just an average of the experience of the attorney for a limited set of terms as McGuire used. This has the advantage of accurately reflecting the relative experience of the orally arguing attorney for each case individually. Again, to test whether there is an added advantage in difference experience for the Office of the Solicitor General over other attorneys, interactions of the experience
81 difference and the Office’s ideological positions are included in a number of influence
models.
The next group of variables assess the influence of the other primary
governmental actors before the Court, the state governments. If the Office of the Solicitor
General exerts influence, then it might be expected that especially in this era of strong
federalist ideas on the Court, the presence of a state government in a liberal or
conservative direction might also exert an influence. It is not expected that the state
would be as influential as the United States, as the Court has often noted that “the ablest
advocates in the U.S. are advocates in the Office of the Solicitor General’s Office”
(O’Connor and Epstein 1983), while at the same time berating state attorneys General for
the poor quality of their work. Including the ideological positions of other governmental
actors as variables in the same format as employed for the Office of the Solicitor General
can provide insight into whether the Court has a bias towards governmental actors
generally, a bias towards the federal government, specifically, or no bias at all. If the
bias is only for federal government actors then these variables would not be significant where the more narrow Office of the Solicitor General variable would be. Later analyses will test whether the significance has changed over time as we might expect if the preferences of the justices have changed over time becoming more centered on federalism issues.
This group of variables test the potential influence, but not the sources of any influence for the Office of the Solicitor General. The Office of the Solicitor General party and amicus variables assess whether the presence of the Office of the Solicitor
General helps explain the liberal or conservative direction of the outcome. By controlling 82 for the other potential influences on the Court if these variables are significant it should
be because the Office of the Solicitor General exerts an independent influence on the
Court’s liberal and conservative decision-making as amicus curiae and as a party to the
suit. Here it is also important to note that there may be a difference in treatment by the
Court of the Office of the Solicitor General when they are invited to file an amicus brief
and when they simply voluntarily choose to file an amicus brief. Such a difference
requires a control for invitations in the sources of influence, Office of the Solicitor
General only model.
In the analysis of the individual justices, I wanted to include tests of whether the
justices treat arguments based on differing political positions of the Office of the
Solicitor General and the President. The four variables are operationalized as the two
positions of the Office coupled with the two possible parties of the president. These four variables are related to case selection hypotheses as the significance of the party and ideology position should not be consistent across justices or ideologies of the justices.
The next group of variables are used in the Office of the Solicitor General only analysis to test a number of the sources of influence together in a single model. Many of these variables are used to assess whether the victory of the Office of the Solicitor
General is the result of congruence of the Office’s position with that of some other actor in the system, primarily the Court, the president, the public, Congress or the states. First is the Court congruence variable designed to test whether the influence of the Office of the Solicitor General is due to congruence with the Court’s ideology.
Another check on the hypothesized influences of the Office of the Solicitor
General is whether the Office exerts influence as the Office or as the agent and 83 ideological mouthpiece of the Office’s appointing President. A variable designed to tap the congruence between the ideological position of the President and that of the Office of the Solicitor General will provide an adequate control. Here the Segal, Timpone, and
Howard (2000) overall measure of President ideology is a reasonable measure for comparison with the Office of the Solicitor General position in cases, as they both address the general ideology of the relevant party allowing comparison between the two.
The Office of the Solicitor General as petitioner variable is designed to assess the different levels of discretion exerted by the Office of the Solicitor General. Since there is little discretion in whether such a case should be filed, and since the Office of the
Solicitor General should lose more of these cases than it wins as a petitioner but not as a respondent. As in previous models the difference in experience of the attorneys has been relevant in understanding the influence of the Office of the Solicitor General. Therefore, a variable to assess the amount of any advantage or disadvantage is included. Another group of variables simply assesses the potential for the other actors in the system, and their congruence of ideologies with the position of the Office of the Solicitor General to be driving the influence of the Office. Three variables, public opinion congruence,
Congressional congruence, and state government congruence are included to test this potential.
The next hypothesis is a response to the Segal concern for different levels of success for different issue areas. The Office of the Solicitor General has special expertise in certain specific areas of law, to which the Court is willing to defer. The Court can not be an expert in all areas of law, so the Court turns to the one attorney they trust to be less self interested than the average attorney, and who still has special knowledge of certain 84 issues or areas of law. The two areas where such expertise by the Office of the Solicitor
General might be expected are foreign policy v. domestic policy and statutory v. constitutional. Where the issue is constitutional rather than statutory, the Court may be less willing to defer to anyone’s judgment as the Constitution has been the Court’s particular bailiwick through-out our history. Statutes on the other hand are to be enforced by the executive branch, and therefore deferring to their position on interpretations and understandings of impact of statutes would be a reasonable action of the Court.
Similarly, the Court would be more willing to defer to the federal government position on foreign policy. Foreign policy power is an issue area specifically granted to the President in the Constitution. Thus the Court would be more likely to defer on foreign policy issues than any other issue. Therefore, a similar variable to the statutory variable is employed to test this issue area as well.
The Court may defer out of gratitude for the discretion used by the Office of the
Solicitor General in picking cases carefully and therefore not wasting the Court’s valuable time. If wasting the Court’s time is a concern, then the Office of the Solicitor
General should be rewarded for greater selectivity, and thus a less crowded docket. If this is true then the Office of the Solicitor General will be more successful when they bring less cases before the Court, and file less amicus briefs. Therefore variables to assess the number of cases/briefs as a party and as an amicus filed by the Office of the Solicitor
General in each year can be used to assess the potential for gratitude in selectivity.
A further hypothesis states that the Court will simply defer to co-equal branch.
The Court simply defers to a co-equal branch of government either out of respect for other federal government actors, or because the court knows it needs the executive 85 branch to enforce their rulings. The Court knows it must rely on the Executive branch to
enforce its rulings. Therefore, to retain legitimacy with that branch the Court may
strategically choose to defer. They also may defer simply because the Executive branch
represents the people as the duly elected representatives of the public. Unfortunately
there is no separate variable that can assess this hypothesis. Therefore, this will be
picked up in the Office of the Solicitor General constant, but is not separable from other
elements in the same variable. Segal challenged the next hypothesis. The Court
recognizes the Office of the Solicitor General’s function as the impartial representative of
legal doctrine, and thus is willing to defer to their position. If legal policy is an important
goal in addition to ideology, then the Court will defer because the Office of the Solicitor
General is seen as the impartial protector for the good of the public. Again there are no reasonable variables able to fully tap this issue.
Another potential variable relates to the idea that the Office of the Solicitor
General is able to write higher quality briefs that carry more weight. This higher quality is a function of a number of factors including the strict following of Court rules, often
ignored by other filers, the ability to conduct better research because of the resources
available, and the ability to write more persuasive briefs because of their greater
experience with framing issues specifically for justices of the Court. Since the Office of
the Solicitor General is an expert in terms of preparing briefs and presenting arguments,
the Office can frame issues in ways that influence the court to see a case in one light
rather than another. Further, when rules are followed, and arguments are better than the
opposing party’s, then the argument will have more weight and seem more persuasive to
the justices. An analysis of this hypothesis would include analysis of whether rules are 86 followed; grammar, language; whether there is use of language from Office of the
Solicitor General (comparing to other parties) briefs in decisions by Court; the number and type of citations to the different parties; and whether reasoning from the briefs is explicitly used by the Court. Unfortunately time and committee member recommendations indicate that I will not be able to explore this hypothesis in the dissertation. Doing so would require a case study of a specific year or two of the Court’s decisions with content analysis of those decisions for the factors listed above including the quality of the briefs and an assessment of Court rules and if those rules are followed by some and not others. Therefore, the Office of the Solicitor General ideology variable will pick up any residual expertise since it is not part of any other Office of the Solicitor
General source of influence unless the experience advantage variable is able to capture this type of expertise.
Success is a relatively easy concept to measure and explore. Influence on the other hand is less tractable. However, influence is also the more interesting phenomenon for understanding the decision-making process. Success is an indicator that the Office of the Solicitor General may be influential. It does not however, establish the fact.
Previous work has attempted to explore the success of the Office of the Solicitor General, while making conclusive statements about influence. I feel that by integrating the research on the Office of the Solicitor General into the decision-making literature we can take one more step towards building a more comprehensive model of decision-making.
This too may be insufficient. The factors that lead to influence by the Office of the
Solicitor General can be tested, at least in part. This may allow for a reassessment of the other potential influences to determine whether some of the same or similar factors can 87 apply in other contexts. While ideology may be at the core of the decisions made by justices, there are some other factors that weigh on the minds of the justices. These may include the opinions, expertise, respect or legitimacy attributable to the Office of the
Solicitor General as the representative of the duly elected government and enforcer of judicial decisions. Hopefully, by understanding whether the Office of the Solicitor
General is influential, we can better understand the factors that contribute to the decision- making calculus.
88 CHAPTER 4
FINDING SUCCESS AND INFLUENCE: MACRO-LEVEL ANALYSIS
This chapter presents the results of the analyses established in chapter 3 based on the hypothetical relations between Supreme Court decision-making and input from the
Office of the Solicitor General. I first explain the data I used for these analyses and the reasons for the choice of the data employed. The models in this chapter are intended to create a bridge between the prior work on the success of the Office of the Solicitor
General and the Supreme Court decision-making literature by including the influence shown in the models as a part of the calculus of decisions before the Supreme Court. In the end what I find is that there is some influence by the Office of the Solicitor General exerted on the Court’s outcomes that is not explained by ideological compatibility between Court and Office of the Solicitor General. This is true when the models are conceptualized in terms of the traditional success literature and when they are viewed from a more influence oriented ideological perspective. Similarly, even when the data is broken down into smaller subsets to look at individual presidents, Solicitors General, issue areas, and roles of the Office of the Solicitor General there is often independent influence by the Office of the Solicitor General. These potential sources of this influence are explored in Chapter 5.
89 I begin by describing the data set. Then I proceed with a re-analysis of what I have described previously as one of the better efforts to understand the success of the
Office of the Solicitor General. In this first analysis, McGuire’s findings are put to the test for an extended time period and with a slightly modified (and I would argue more accurate) indicator of experience. I then attempt to incorporate the hypotheses concerning the success of the Office of the Solicitor General into a model focusing on success as the dependent variable. As a final modification of the model, I show how altering the dependent variable to one focused on the ideological direction of the case outcomes allows for closer compatibility with the Supreme Court decision-making literature.
A. DATA
In describing the data I employ for this dissertation, I need to lay out the reasons for choices concerning time frame, the Spaeth Supreme Court dataset (2000), experience, amicus curiae data, and all other data choices derived from the theoretically necessary variables described in chapter 3. The general data is unchanged regardless of whether the model covers success, influence generally, or specific influence factors.
Previous research has focused on either the Office of the Solicitor General as an amicus curiae because of the choice of whether to become involved or not; or on the
Office of the Solicitor General’s role in influencing the case selection process, as an amicus or party, because of the Office’s control over which federal government case should be taken to the Court. I believe that exploring the role of Office of the Solicitor 90 General as amicus is important. It provides a good comparison for cases where there was almost complete discretion on the part of the Office of the Solicitor General. It is necessary to evaluate all merits decisions, not just amicus decisions to understand influence. The variation in roles of the Office of the Solicitor General provides a diversity of opportunities for influence justifying this approach.
Concentrating on the selection stage as much previous research has done ignores the impact of the Office of the Solicitor General at later stages where content can be examined in order to find patterns of influence. When the primary question is the success of the Office, it makes more sense to explore that success at the case selection stage where it might be more surprising and therefore more interesting. When the issue under consideration is influence rather than success, it seems less likely that influence in a measurable and important way for Supreme Court decision-making would be at work at the case selection stage. At this stage any influence concerns whether the Court should render a decision, not the content of the decision where models of judicial decision- making have looked for influence. Therefore, because of the more extensive work on case selection, and the greater import of merits stage influence for the judicial decision- making literature, I will concentrate on the merits cases only, examining all participation, whether by parties or the government as amicus curiae, in orally argued cases.
It may not be completely necessary to use all participations, both amicus and party, as many previously have concentrated solely on the amicus participations.
However, there are some solid reasons to analyze all participation. There are 4 roles played by the Office of the Solicitor General in Court proceedings (listed from most discretion to least): file an amicus brief voluntarily, file a petitioner brief, file an amicus 91 brief on invitation, or file a respondent brief. Most studies have emphasized the amicus
participations as the most important because they are more voluntary. Choosing only
voluntary cases distorts the impact of the Office of the Solicitor General. The Office is
still more successful than any other party as a respondent. The real question is why are
they so successful? Looking at amicus cases can not answer this question. By
comparing respondent and petitioner cases, we can also get a better sense of whether this
supposed case selection bias of only picking winners is valid. Amicus filings, while
important are also only supplemental to the party briefs. They tend to be shorter and are
rarely supported by oral argument. Amicus briefs are supposed to provide new arguments
or points of law not made by the parties, but generally do not carry the weight of the
parties’ briefs. Caldeira and Wright (1998) have shown that amicus briefs are valuable at
the jurisdictional stage as indicators of the importance of a case, but have little value at
the merits stage. Therefore, the differences between amicus participation and party
participation merit the inclusion of party participation.
With these limitations on the scope of the research, it becomes apparent that a
larger number of terms can be used in the dataset. It does not seem unreasonable given
the availability of much of the material on the cases through the Spaeth Supreme Court
dataset (2000), to expand the research to include the entire modern era of the Court,
1953-1999. A forty-six year study provides enough data points to do more extensive analyses. Connecting the time period allows for comparisons across terms controlling for changes in Court composition, President and Solicitor General. It also allows for breakdowns of time periods within the dataset for comparison. The variance in the different factors over time allow me to determine whether the influence of the Office of 92 the Solicitor General is consistent. It would be useful to see Democrats interact with both
Republican Courts and Democratic Courts and vice versa. It would also be interesting to observe cases involving different Solicitors General to determine whether there is variance under the same President, but different Solicitors General. Thus, comparisons can be made between the Reagan Solicitors General, who have been argued (Caplan
1989) to be very different from each other with respect to their independence from the
President. Further, it would be preferable to conduct the study over a continuous time period to be able to assess changes over time in the receptiveness of the Court to a particular Office of the Solicitor General’s efforts. Finally, it allows me to do further analyses on subsets of issue areas to examine whether the influence of the Office of the
Solicitor General is consistently present in each context. Therefore, I study an extended time, allowing for greater variance and multiple sub-analyses to further explain the impact of the Office of the Solicitor General on the Court’s decision-making.
In the end I have chosen to analyze all cases from the 1953 to 1999 Supreme
Court terms (October 1953 through September 2000). Such a database has the advantage of including the entirety of the Warren and Burger Courts and most of the Rehnquist
Court. It covers the period that has become known as the modern era of the Supreme
Court and corresponds with research providing measures for analyzing the Court,
Congress and public opinion making it reasonable to include these variables into my analysis. The period includes the 1980's and 1990's to evaluate the changes from
Republican to moderate Republican to Democrat as president, while the Court remained conservative leaning. The period would also extend back through the 1970's and 1960's to allow for an analysis of 2 Democratic presidents, 2 Republican presidents and then 93 another Democratic president which would allow for comparisons of the impact of each party’s Presidents on a liberal leaning Court.
Using this forty-six year dataset does have the limitation of not allowing the more detailed analysis of the content of decisions to determine whether influence can be seen in the direct language of the Court’s decisions. That research can be incorporated into the study of the Office of the Solicitor General at a later date when more time and resources are available.
The database consists of all cases in each of the sample terms. In order to understand both success and influence, I must be able to compare cases in which the
Office of the Solicitor General participates to all other cases. With data for all cases and briefs before the Court in the sample years, I will have data on cases in which the United
States was a party, cases in which the United States participated as an amicus curiae, both voluntarily and when invited to do so by the Court, and cases in which the United States did not participate at all. This data will allow me to delve into the more important question of influence. Some participants may have greater influence than others, and to assess not only whether the Office of the Solicitor General is influential, but also the nature of that influence compared to other parties before the court is essential to expanding on the current models of Supreme Court decision-making. Some of the most important Non-United States participants who may exert influence are the state governments who may have gained more influence or to whom certain justices are more deferential (Caldeira and Wright 1998).
There may be a number of difficulties that require exclusion of certain types of cases. These could include cases where the United States is opposing another attorney 94 representing a separate element of the United States government (i.e. NLRB attorney opposing the view taken by the Office of the Solicitor General). However, such cases could make for an interesting analysis to determine the Court’s reaction. In theory they should cancel each other out if we analyze based on the hypotheses below, but there may be more to it than expected. Further, there may be a reason to exclude the set of cases that include federalism issues, and criminal law issues as the federal government invariably is on the same side. In fact on federalism issues, the issue is framed as liberal or conservative in terms of which side the government supports. In such areas of law it is difficult to distinguish influence from a coding decision making it all but impossible to determine the implications of the Office of the Solicitor General’s actions on Supreme
Court decision-making. This raises questions about the usefulness of such cases in an analysis of the influence of the Office. However, these cases, when included with all others can be analyzed separately as part of the breakdown of the dataset, shedding light on the reasons and nature of the influence as well.
As indicated previously, I employ the Spaeth Supreme Court dataset (1953-1999) as the base data for these analyses. While there are some potential problems with this dataset, it has the advantage of providing much valuable data covering almost every aspect of merits decisions during the time period. The coding decisions of the dataset with respect to the ideological direction of outcomes has been reviewed with the result that I have adopted the codings of the dataset except where the coding was explicitly based on whether the government won or lost as is the case for federalism cases. Where this additional review of the cases resulted in a determination that the case should be recoded or dropped to avoid coding a portion of my Office of the Solicitor General 95 independent variable based on the dependent variable, I have down so, otherwise my
findings may have been inaccurately positive in their findings of influence.
It was also necessary to add a number of variables to the dataset to pick up factors
that are relevant for my research, but which are not included in the Spaeth dataset. These
include a public opinion variable based on James’s public mood indicator (1999); a
measure of the ideology of Congress based on the Poole and Rosenthal (1997) DW-
Nominate scores (House and Senate calculated separately then combined for an aggregate
Congress score); a number of variables indicating amicus curiae participation by the
government, and a McGuire-like experience variable.
The experience variable deserves more detailed explanation. This variable was
derived by reviewing all orally argued cases before the Supreme Court and first noting
the names of all arguing attorneys. I proceeded backwards from 1953 to get all prior
arguments of the attorneys outside the time frame of my dataset. I then calculated a
running total of oral arguments for each attorney in a case such that each argument
results in one additional point of experience for the following case argued by the same
attorney. I then calculated the difference of experience for each side in each case.15 It should be noted that while a simple difference of experience variable is employed in my models there is some argument that the experience should be modeled as a quadratic function to take account of the reduced value in terms of influence, of an attorney having a very large number of experiences such that the value of adding one experience when an
15Where more than one attorney argued on a side, variables were created and employed for the average experience on a given side and a maximum experience for that side. In the end I have chosen to show only the average experience variable outcomes as both variables performed the same in part due to the small number of instances where more than one attorney argued on a given side. 96 attorney has only one previous experience is much greater than the value of adding one experience when the attorney has thirty previous experiences. For comparability with prior research and to simplify both the analysis and interpretation of the results, as well as because the exact form of such function is open to debate, I have chosen to employ the simplified difference of experience formulation noting its potential limitations.
This dataset allows me to analyze all merits decisions of the Supreme Court to determine whether the Office of the Solicitor General exerts influence over the decisions of the Court. It is large enough and detailed enough to provide leverage over the data even with somewhat larger models of influence, and still provide sufficient cases to allow for breakdowns of the analyses to test sub-sets for influence. In the next section, I will share the results of my analyses of this data where I find influence by the Office of the
Solicitor General on the decisions of the Supreme Court.
B. RE-ANALYZING MCGUIRE
The first step in the analysis of the influence of the Office of the Solicitor General is to build a bridge between prior research on the success of the Office and my analysis of the influence of the Office. Therefore, this first analysis is structured to retest and expand upon McGuire’s findings that suggest that the success of the Office of the
Solicitor General is derived from its, on average, greater experience than the opposing attorney in the case. These results give the appearance of supporting McGuire’s claims on the surface at least with respect to the smaller six term time periods employed in
McGuire’s analysis. However, when employing the larger 1953-1999 analysis and when 97 evaluating the predicted probabilities my findings raise some doubts about limiting the understanding of the role of the Office of the Solicitor General to its greater experience levels.
In order to check McGuire’s findings I have rerun two of his analyses using models and variables as close to his originals as possible. The two analyses are his base
Office of the Solicitor General as petitioner and respondent versus attorney experience
(Figure 9), and his analysis designed to evaluate whether the Office of the Solicitor
General receives an added boost from its experience (Figure 10). There is one difference that I have chosen not to correct is in the calculation of the experience variable. Rather than using only the average experience per term of the attorneys based on the study period, I have included a measure of the actual experience of the attorneys on either side of the case as of the time the case was decided calculated for all cases within the sample study period as well as prior to the sample period. This allows for a more accurate assessment of the experience of the attorneys arguing on either side of the case. In order to evaluate the role of the Office of the Solicitor General, I have run the McGuire models for his study period, 1977-1982, as well as a number of other sub-periods and the entire
1953-1999 period of my study. The results are intriguing.
McGuire limited his study to a six term period from 1977 to1982 in order to pick up effects based on transition in the presidency and to have sufficient terms to note a trend. I have replicated his study for the terms of his study as well as for two other six term periods for which there was a transition in the presidency, 1966-1971 and 1990-
1995. The results from Figure 9 for these three periods indicate that McGuire’s findings that the Office of the Solicitor General’s success is attributable to the greater experience 98 of the Office and not to some condition unique to the Office appear to be accurate. The period chosen by McGuire is not an anomalous period, but rather comports well with the results for the two other periods I use, lending support to the generalizability of
McGuire’s argument. In fact, the change in the experience variable to pick up all experiences by the attorneys and not just those experiences during the study period seems to have very little impact on the results.
However, when I examine the larger sample of all cases between 1953 and 1999,
I find that in large part due to the much larger number of observations which reduces the standard errors to a point that more things become significant, the Office of the Solicitor
General as petitioner and respondent variables become highly significant. The same can be said about at alternate McGuire model (Figure 10) using the party position of the
Office of the Solicitor General and then controlling for both the experience and an Office of the Solicitor General/experience interaction to capture any added experience effect for the Office. In the sub-periods, the Solicitor General variable is significant in only the
1977-1982 period, but it is highly significant for the entire period of 1953-1999. There does not appear to be added influence exerted by the Office of the Solicitor General based on their greater experience levels. In order to explore and understand these findings better I have calculated the predicted probabilities of the petitioner winning for the Figure
8 model based on changes in the independent variables. McGuire does not report the predicted probabilities based on his models. I have chosen to do so to further explain the substantive significance of the findings on the significant variables in the model.
99 1953- 1966- 1977- 1990- Variable 1999 1971 1982 1995 Intercept .49** .62** .52** .36** (.03) (.09) (.03) (.09) Solicitor General .36** .31 .36 .06 as Petitioner (.10) (.27) (.27) (.33) Solicitor General -.38** -.12 -.35 -.19 as Respondent (.08) (.25) (.28) (.28) Litigation Experience .37** .35** .40** .45** (.04) (.10) (.10) (.11) -2 X Log Likelihood 216.20 18.95 28.06 26.15
**= significant at p<.001
Figure 9: Success of Petitioner and Respondent Controlling for Office of the Solicitor General Participation and Experience of the Attorneys.
1953- 1966- 1977- 1990- Variable 1999 1971 1982 1995 Intercept .48** .64** .51** .33** (.03) (.08) (.08) (.09) Solicitor General .37** .24 .38* .14 as Party (.06) (.18) (.19) (.22) Litigation Experience .37** .34** .39** .46** (.04) (.10) (.10) (.11) Solicitor General .02 .05 -.15 .10 Experience Interaction (.07) (.19) (.21) (.22) -2 X Log Likelihood 216.20 19.03 28.57 26.26
**= significant at p<.001; *= significant at p<.05
Figure 10: Success of Petitioner and Respondent Controlling for Office of the Solicitor General Participation, Experience of the Attorneys and Interacting Participation and Experience.
100 The baseline prediction derived from the models for the 1977-1982 and the 1953-
1999 periods indicate that 62% of the cases will favor the petitioner when the experience is equivalent and the Office of the Solicitor General is not involved in the case. The results are remarkably consistent for the 1977-1982 and the 1953-1999 periods, with the differences being a matter of tenths of a percent. The side with the greater experience gains a 9% advantage, thus if the petitioner’s side has the greater level of experience, then the petitioner wins 71% of the time, and if the respondent has the greater level of experience, then the petitioner wins 53% of the time. Similarly, the effects of the Office of the Solicitor General participating are almost equivalent to those for the experience of the attorneys.
When the Office of the Solicitor General participates as a petitioner with the experience of the attorneys even, the predicted probability of the petitioner winning increases from the base of 62% to 70%. On the other side when the Office of the
Solicitor General participates as a respondent the petitioner’s chance of winning decreases from 62% to 53%. These results hold for the 1977-1982 period as well as for the 1953-1999 period. It is more difficult to interpret these results for the 1977-1982 period since the coefficients for the Office of the Solicitor General variables are not significant. The results imply some substantive impact but it is not possible to distinguish the impact from the no impact at all statistically speaking. Given that the results and magnitude for the sub-period and the entire period are in essence the same it is likely that the difference in significance is attributable to the larger number of observations for the entire period suggesting that the original study employed too few observations to observe the real impact of the Office of the Solicitor General 101 participation. It is obvious from the larger data-set that the impact of the Office of the
Solicitor General participation and the experience advantage cancel each other out when working against each other (a relatively rare occurrence) resulting in a 62% likelihood of the petitioner winning; but greatly increase the chances of a party winning when they work in coordination. Thus when the Office of the Solicitor General has the experience advantage and participates on the respondent side the likelihood of the petitioner winning drops to 44%, and when the more experienced Office of the Solicitor General is on the petitioner side the chances of the petitioner winning increase to 77%. Either way with either the Office participation or the experience advantage the effect is quite substantial.
One might expect that there would be a greater advantage for the Office of the
Solicitor General when they participate as a petitioner than as a respondent because of the greater discretion as a petitioner. This would hold true if the hypothesis that the Office of the Solicitor General is picking winners were true. The choice of relatively good cases would raise the probability of a favorable outcome for the Office of the Solicitor General as a petitioner. The exact opposite appears to be true. The Office of the Solicitor General gains a slightly greater advantage when participating as a respondent than as a petitioner.
As there is more room for movement toward the respondent side (0-62 versus 62-100), this should not be surprising as it related to the functional form of the variables rather than the substantive effect..
In the end it appears that McGuire was at least in part correct in concluding that the Office of the Solicitor General’s impact is related to their greater experience at least based on the data McGuire had available. The re-analysis of the McGuire results presented here raise questions about the sample size and the overall modeling approach 102 taken in traditional studies of the Office of the Solicitor General. A more extensive look
at the role of the Office of the Solicitor General suggests that the success of the Office of
the Solicitor General is on a par with that of having the experience advantage in a case.
These findings suggest that further study of the role of the Office of the Solicitor General
is necessary to understand case outcomes. One major shortcoming of the Office of the
Solicitor General success research to date is its incompatibility with broader Supreme
Court decision-making research. In the last portion of this chapter I will explore this
deficiency while also setting up the other hypotheses from Segal, McGuire and others
that have been insufficiently explored in the success literature. The result is a need for a
model that explains not just the success of the Office of the Solicitor General, but also the
influence of the Office of the Solicitor General.
C. INFLUENCE MODELS
The analysis of the influence of the Office of the Solicitor General is necessary to explain the success of the Office where that success is not explained by some other factor like the experience of the attorneys. For the sake of consistency with prior research on the Office of the Solicitor General I have employed a model with petitioner versus respondent winning the case. I then proceeded with my primary model concerning the influence of the Office of the Solicitor General, though not the sources of that influence.
First, a model to explore whether actors outside the Court have some influence on the
Court’s decisions. Second, a sequence of models using subsets of the data where one
103 might expect differences in the treatment of the Office of the Solicitor General and as a result either more or less influence depending on the circumstances.
The model structured around the petitioner versus the respondent winning is important as a bridge back to prior research. However, the complexity of such a model when ideological factors are important in the analysis raise some doubts as to whether such a model provides useful results. In order to build such a model all ideological variables must be interacted with the ideological position of the petitioner or respondent otherwise the results are not interpretable because of a lack of causal connection between ideology and whether the petitioner or respondent wins. These complications require interpretation of interaction terms while the base variables leading to the interactions are only relevant for understanding the conditional effects of the variable/interaction pair.
Due to these complexities, I have chosen to run the analyses, but as the results are consistent with the ideological model explained below, I will not report these results here, leaving this convoluted analysis as simply further support for the hypothesis that the
Office of the Solicitor General exerts some independent influence on the Court’s decision-making.
The complexities of interpreting a model with seven interaction terms where the base variables from which the interactions are derived are not causally linked to the dependent variable point to the need for restructuring the analysis to accommodate the ideological components by employing models with the ideological direction of the outcome as the dependent variable. This model addresses the core question of whether the Office of the Solicitor General exerts some independent influence on decisions after controlling for a sequence of the most prominent potentially influencing actors before the 104 Court. This full data model assesses the influence of the Office of the Solicitor General without distinctions based on differences in president, Court composition, issue area, or role of the Office of the Solicitor General. These sub-analyses will follow to further explore the macro-level influence of the Office.
The dependent variable in this model is whether the liberal position or the conservative position prevailed. This dependent variable has the advantage of being consistent with how actors’ potential influence on the Court have been structured in analyses focusing on each actor separately. The full model in Figure 11 is:
Liberal win = Court Ideology + Liberal Petitioner + Liberal SG + Conservative SG + Liberal State Govt + Conservative State Govt + Congress Ideology + Public Opinion Ideology + Attorney Experience Advantage + Liberal SG Amicus + Conservative SG Amicus.
If the Office of the Solicitor General variables are significant even controlling for the ideology of the Court and the input from the other actors in the system, then it is possible to say that the Office exerts some influence on the Court’s decision-making independent of simply picking winners based on an understanding of which cases present arguments with ideological preferences for the Office that are congruent with the ideological preferences of the Court. If, however the Office of the Solicitor General variables are not significant, then it would be difficult to attribute any influence on decision-making to the Office. Below I present the findings of this model including the probit analysis coefficients and significances and the predicted probabilities of the variables as calculated using Gary King’s Clarify program for Stata7 (2000).
105 Variables Coefficient S.E. Significance Court Ideology 1.894 .218 .000 Liberal Petitioner .569 .037 .000 Liberal SG .404 .058 .000 Conservative SG -.439 .052 .000 Liberal State Govt .059 .070 .398 Conservative State Govt -.083 .045 .064 Congress Ideology -.397 .196 .043 Public Opinion Ideology .001 .004 .748 Attorney Experience .004 .001 .000 Advantage Liberal SG Amicus .445 .066 .000 Conservative SG -.518 .071 .000 Amicus Constant -1.261 .237 .000 n=5466; Pseudo R-squared= .1125; Likelihood Ratio=851.29; Prob> chi2= .0000
Figure 11: Influence of Independent Actors on the Outcome of Cases Controlling for the Ideological Preferences of the Justices, 1953-1999.
106 The results of the base model exploring the influence of independent actors indicates the influence of a large number of actors controlling for the ideology of the
Court, though not all of the actors. The Court ideology variable employed here is the mean justice voting scores derived from the ideological direction of all cases argued by the justices. Two other Court ideology variables have been used to explore any variance based on peculiarities of the measure. Doing so compensates for the fact that the vote scores as indicators of ideology may subsume the potential influence of other actors on the Court’s decisions. The finding of influence here is then even more surprising than if the Court ideology were a completely independent measure of ideology. I have chosen to report only the voting score model here because the results are very similar between all three models and because the voting scores are generally accepted among judicial scholars as reasonable indicators of justice ideology. The results of the models with both the Segal-Cover score, an independent measure based on newspaper editorials at the time of the confirmation hearings, for Court ideology; and the Bailey and Chang (2002) ideology point score, a voting score with an adjustment for dynamic voting by the justices whose voting was not static over their tenure on the Court are reported in
Appendix A.16
A closer look at the results is instructive in understanding the influences on the
Supreme Court. The only two variables that do not even approach significance are public
16A note on the results of the analysis using the Segal-Cover scores, the primary difference in the two models is that the Congress variable does not even approach significance in this alternate model while it is very near significant in the vote score model. This is likely to be an artifact of the way the Segal-Cover scores are constructed. The scores are based on a determination of ideology from newspaper editorials during the confirmation stage of a justice’s career. As a result the ideology of Congress as the confirming body inevitable plays a part in the analysis of the justice’s ideology by the newspaper editors. 107 opinion and when a state government takes a liberal position before the Court. It should
not be surprising that public opinion, even at a one year lag to allow the Court to learn
and respond to that public opinion would not be significant as most scholars have
disputed whether public opinion can have an impact on Court decisions generally except
through the electoral process, meaning through Congress and/or the President.17 So too, it is less than surprising that when a state pushes a liberal claim the Court is not influenced. The state governments have been viewed through-out history as almost incompetent as litigators before the Supreme Court thus indicating that their arguments are likely to be less effective. This does, however, make it somewhat surprising that when the state espouses a conservative position there is an impact on Court decisions.
This may well be the result of a growing federalist attitude on the Court among the more recent conservative appointments who were selected at least in part to satisfy their presidents’ desires for more state government power. This issue can be explored further by analyzing different eras of the Court comparing the less federalist oriented fifties and sixties with the more federalist oriented seventies, eighties and nineties.
With the exception of the congress variable the remainder of the significances and coefficient directions were expected based on the prior re-analysis of McGuire and the success and related hypotheses concerning the Office of the Solicitor General. As the summary statistics in Chapter 2 show, and as judicial scholars have recognized for years, there is a strong bias in favor of petitioners in cases. This is supported by the model.
17Segal and Spaeth (1993) and Norpoth and Segal (1994) both find no effect of public opinion, but see Mishler and Sheehan (1993) who find that the Court responds to public opinion on a five year lag, although they provide no explanation why this is the case (except that the lag is sufficient to time to allow for electoral changes to begin to effect the Court through other actors), also Flemming and Wood (1997). 108 Further, the ideology of the justices has been posited to be one of the strongest indicators of outcomes, if not the only relevant indicator (Segal and Spaeth 1993). Therefore, when the model indicates that the more liberal the median justice on the Court, the more likely the decision will be a liberal decision, this is highly expected.
The experience of the attorneys as repeat players was posited by McGuire to be a relevant factor in explaining the outcomes of cases at least as far as the Office of the
Solicitor General is concerned. This holds true in the model as well, as the greater the experience on the liberal side, the greater the chances of a liberal outcome. However, while others have posited that the Office of the Solicitor General has an independent influence on the Court’s decisions and my preliminary results from above also point in this direction, both McGuire and the Supreme Court decision-making literature have tended to discount the independent influence of the Office of the Solicitor General.
The results of this model of decision-making indicate that the Office of the
Solicitor General has an impact on the decisions of the Court even controlling for the experience of the parties and the ideology of the Court. This impact is highly significant for situations where the Office of the Solicitor General is a party and where the Office of the Solicitor General is an amicus participant. A joint hypothesis test for the equivalency of the liberal and conservative party and amicus variables suggests that they are of similar magnitudes. Regardless of the role played, the Office of the Solicitor General influences the decisions of the Supreme Court at what appear to be relatively equivalent levels. This is somewhat surprising since the influence of the Office of the Solicitor
General should be at its strongest when they are acting as a party and have the ability to argue the case before the Court. The fact that the influence occurs when the Office of the 109 Solicitor General files an amicus brief at similar levels to when they orally argue implies
that there is some inherent condition in being the Office of the Solicitor General, whether
it is the political connection to the president, or an abstract bias in favor of the Office can
not be determined from this model, but will be explored in Chapter 5. The results
concerning the Office of the Solicitor General as party and amicus mean that even
beyond the bias in favor of the petitioner and the preferences of the Supreme Court, the
Office of the Solicitor General can influence the decisions of the Court.
Finally, the Congress variable comes out significant, but in the opposite direction
than expected. There has been an ongoing debate in recent years as to whether Congress
has any influence on the Court’s decisions.18 There are a number of possible ways to explain the role of Congress in decision-making (See Dahl 1957). These include that
Congress plays no role at all (Segal and Spaeth 1993), that Congress is important because of the potential through impeachment, or altering the Court’s jurisdiction or composition, of sanctioning the Court, a simple deference to a co-equal and more democratic branch of government, or that simply through the replacement of justices the Court will become more responsive to the desires of Congress, not because Congress expects it, but because the new members of the Court agree with Congress. I will not explore these hypotheses in detail here, but will use them to analyze the results concerning the Congress variable.
The results of the Congress variable indicate that the more liberal the Congress is, the more likely the Court will reach a conservative outcome. The variable is just
18Segal (1997) says there is no impact because of no threat of sanctioning the Court. Spiller and Gely (1992) find an impact although they can not determine whether it is because of sanctions or simply deference or respect. 110 significant at p=.043, but this is enough to have a closer look at the variable.19 This result can not be explained by either the deference or sanctioning hypotheses of
Congressional influence. If however, the only way the Congress can influence the Court is through appointments, and they do not even control that mechanism completely as they only have the power to confirm of Presidential nominations in the Senate, then it might be expected during times of divided government, which we have seen through-out much of the seventies, eighties and nineties (and if divided government is viewed as conservative versus liberal, then in the sixties as well), that Congress will be on the opposite end of the spectrum from the Court and the negative effect found in these results would be a possibility. Whether this is actually the case or not must be left to another time when the role of the Congress can be explored in more detail.
Even where variables are found to be significant in a probit model, it is not possible to understand the implication of the results without further evaluating the predicted probabilities of a liberal versus conservative outcome derived from those results. The magnitudes of the influence of the different actors in the model can be determined by evaluating these predictions. Below I will discuss the predicted probabilities of having a liberal outcome in a case based on the variables in the general influence model presented above. I have also represented some of the relationships in the
19Other possible ways to conceptualize the Congress variable were employed with similar results. The alternates were all either borderline significant or actually significant in the negative direction indicating that the Court’s decisions run counter to Congressional preferences. The alternate conceptualizations included a non-lagged full Congress variable; a Senate only variable, with and without a lag, because of the possibility that since the Senate confirms justices, the justices would look to the Senate as the replacing and sanctioning body of Congress; and a House only variable, with and without a lag, since there is potentially greater variance in the House. Finally a model with both House and Senate variables, with and without a lag, was included to determine whether there is a differential treatment of Congress for each house. 111 predicted probabilities graphically to more vividly explain the impact of some key variables.
Figure 12 presents the predicted probabilities in table form. The baseline category of the model is a model with the mean of the median justice ideologies (.528), a liberal petitioner, no Office of the Solicitor General as party, no state government, no
Office of the Solicitor General as amicus curiae, no experience advantage to either party
(experience difference=0), and ideologically neutral public (.5 ) and Congress (0). The baseline prediction of a liberal outcome based on these starting points is 65.12%. If the base is altered for a conservative petitioner, there are liberal outcomes predicted only
40.08% of the time. This 22% difference is the largest uni-directional effect of any of the variables except at one extreme of attorney experience advantage. This should not be surprising given the bias in favor of taking cases the Court wishes to reverse. Also not surprising should be the effect of the justice’s ideologies. Moving from the most liberal
Court member to the most conservative Court member alters the prediction from 79.5% predicted liberal outcomes to 45%, an almost 35% swing. This comports with the view that the ideologies of the justices drive much of the decision-making on the Supreme
Court.
112 Independent Variable Predicted Liberal First Values Percent Difference Range Baseline Prediction* 61.90% 44.33-78.20 Conservative Petitioner 40.08% -21.82% 23.62-58.49 Most Liberal Justice (.814) 79.50% +17.60% 62.84-91.50 Most Conservative Justice (.296) 45.01% -16.89% 28.43-62.64 Liberal Solicitor General 75.73% +13.83% 59.01-88.05 Conservative Solicitor General 45.01% -16.89% 27.65-63.15 Liberal State Government 64.11% +2.21% 45.54-80.09 Conservative State Government 58.76% -3.14% 40.60-75.43 Liberal Public Opinion (.75) 61.91% +.01% 44.41-78.15 Conservative Public Opinion (.25) 61.88% -.02% 44.25-78.25 Most Liberal Congress (.184) 59.16% -2.74% 40.98-76.01 Most Conservative Congress (-.126) 63.73% +1.83% 46.10-80.04 Liberal Solicitor General as Amicus 76.84% +14.94% 60.97-89.37 Conservative Solicitor General as Amicus 42.04% -19.86% 24.75-61.61 Difference in Experience Max Liberal Advantage (143) 81.11% +19.21% 63.24-93.35 Average SG Liberal Advantage (17) 64.54% +2.64% 46.89-80.38 Average Non-SG Liberal Advantage (7) 62.99% +1.09% 45.23-79.12 Liberal Advantage (1) 62.05% +.15% 44.55-78.31 Conservative Advantage (-1) 61.74% -.16% 44.11-78.10 Average Non-SG Conservative Advantage (-7.25) 60.75% -1.15% 42.75-77.41 Average SG Conservative Advantage (-14) 59.67% -2.23% 41.62-76.59 Max Conservative Advantage (-144) 38.63% –23.27% 20.03-60.81
* Baseline Prediction based on Liberal Petitioner, no Office of the Solicitor General, no state government, Mean justice on the Court (.528), neutral public opinion (.5), neutral Congress (0), and no experience advantage to either party. All predicted probabilities calculated using Clarify for Stata 7.
Figure 12: Predicted Probabilities of Liberal Outcome in Cases with Various Values of the Independent Variables, including First Differences and Prediction Ranges.
113 The remaining predictions deserve a closer look. Since the public opinion and liberal state government position variables were not significant in the model, the results are reported here solely to represent the entire model in predictions. As is evident from the ranges (which represent the 95% confidence interval for the predictions) it is not possible to distinguish the predicted effect of these two variables from the baseline. The remaining significant variables from the model have far less predicted impact than either the petitioner’s ideology or the Court’s ideology, except for the Office of the Solicitor
General variables that will be discussed in detail below. A conservative state government position is predicted to make the likelihood of a liberal outcome 3% lower than when there is no state government. This is a relatively minor move, and given that the range overlaps with the baseline prediction substantially, there may be doubts as to whether the effect for a conservative state government position is actually that strong. It is possible to say that there is probably a minor influence in the conservative direction exerted by state governments. As discussed earlier the explanations of the counter-intuitive effect of
Congress suggest that there may not be a causal link between Congressional preferences and Court outcomes. However, if there is a causal link it is predicted to have 4.5% impact on Court outcomes where the Congressional position is at its most liberal compared to when it is at its most conservative between 1953 and 1999. Again the impact is rather minimal, and as with the conservative state government position, the ranges raise doubts about the influence of Congressional preferences on Court decisions.
The last variable I need to discuss prior to evaluating the impact of the Office of the Solicitor General, is the attorney experience variable. The side with the greater experience is predicted to increase its likelihood of winning by approximately .15% for 114 every additional case advantage. Given that the average advantage for non-Office of the
Solicitor General attorneys is a 7 argument advantage, the average attorney has a 1.1% advantage over their opponent. Even the Office of the Solicitor General does not gain a huge advantage for its greater experience as the average Office of the Solicitor General advantage of 17 more arguments than their opponent only results in 2.5% greater likelihood of winning. At the extremes the effect is great for at the maximum advantage
(always held by the Office of the Solicitor General as the most arguments by any attorney not in the Office of the Solicitor General’s Office is 48) the attorney can gain a predicted
19-23% increase in their likelihood of winning.
A note of caution about these predictions and the modeling of the experience of the attorneys should be added here. As Appendix B indicates a linear model of attorney experience advantage does not comport with the reality of the distribution of that experience as plotted against the outcomes of the cases. A better modeling of the experience might reveal that the majority of the predicted impact of attorney experience occurs when the experiences are minimal and so are the advantages, as the value of gaining experience is greatest at its earliest stages and then diminishes once a certain threshold is reached. However, as other models have been attempted and create greater problems than solutions, the linear representation will be explored in these analyses.
Future work can explore the modeling of the experience variable more clearly. The most important variables for my hypotheses are the Office of the Solicitor General ideology variables.
What is somewhat surprising given McGuire’s findings and the arguments of the attitudinalists is that the Office of the Solicitor General’s position has an almost equal 115 effect to that of the Court’s ideology. This is in line with the findings of the greater success of the Office of the Solicitor General and the continual claims of influence based on that success. The Office, when participating as a party, is predicted to create a 31% swing in the likelihood of a liberal outcome by altering their ideological position. The effect for the Office of the Solicitor General is 3% greater when they espouse the conservative position rather than the liberal position. Most of the difference between the liberal and the conservative positions of the Office of the Solicitor General disappears when the baseline is changed to include a conservative petitioner rather than a liberal petitioner, since there is less room for movement on the conservative side (14% more liberal with a liberal Office position, 15% more conservative with a conservative Office position). However, the fact that there is no difference in the effect on the liberal side indicates that there is generally more impact of a conservative position taken by the
Office of the Solicitor General. This may well be attributable to the fact that during a majority of the terms during this study, there was a conservative court that was more responsive to conservative positions, even where the median justice was only moderately conservative.
The results for the Office of the Solicitor General as amicus curiae look very similar to those where the Office is a party. The influence is actually slightly greater when the Office of the Solicitor General is acting as an amicus curiae with a predicted
35% swing in the votes. Once again conservative positions by the Office of the Solicitor
General seem to carry about 5% more influence than liberal positions. The influence of the Office of the Solicitor General as amicus is equivalent to the influence of the court
116 ideology. The Office’s influence affects the outcomes of cases quite significantly from a substantive stand-point.
A closer look at the Office of the Solicitor General predictions is instructive.
Figure 13 shows a scatterplot with a fitted line of the predictions of liberal outcomes comparing across the range of Court median ideology for the three possibilities with respect to the position of the Office of the Solicitor General when there is a liberal petitioner. This graphic representation shows vividly how important the Office of the
Solicitor General is in influencing the decisions of the Supreme Court. Above and beyond the effect of the justice’s ideologies and the bias in favor of petitioners, the Office of the Solicitor General can increase the likelihood that a case will be decided against the preferred position of the petitioner. For instance, where the median justice on the Court votes in the liberal direction 55% of the time, and there is a liberal petitioner, there is a
68% chance that the liberal petitioner will win the case. That chance increases to 80% when the Office of the Solicitor General takes the liberal position (here that means they are the petitioner). However, if the Office of the Solicitor General were the respondent in such a case, and thus take the conservative position, the chances of the respondent winning are now even with the chances of the petitioner winning. The Office of the
Solicitor General has the ability to counteract the effects of both a liberal median justice and a liberal petitioner.
117 Figure 13: Predicted Percentages of Liberal Outcomes based on Liberal and Conservative Solicitors General as compared to Cases with no Office of the Solicitor General Participation across the Range of Median Justice Ideologies when the Petitioner is Liberal, 1953-1999.
118 Whether this influence holds true under a variety of conditions in cases is yet to be explored. This is the focus of the following chapter. These analyses while not directly designed to explore the sources of influence, provide some hints about why the
Office of the Solicitor General is influential and are therefore related to the idea of sources of influence.
119 CHAPTER 5
INFLUENCE UNDER A VARIETY OF CIRCUMSTANCES
In order to explore the existence of the Office of the Solicitor General influence in depth, I have analyzed the data under a variety of more limited circumstances that may have an impact on whether the Office of the Solicitor General is influential on the
Supreme Court’s decisions. These sub-analyses have the merit of detailing under what circumstances the Office of the Solicitor General may be less influential, and revealing what are potentially sources of influence, but also providing a robustness check on the findings in the full data influence model. If the influence of the Office of the Solicitor
General holds even in the smaller analyses, it is less likely that the significance is an artifact of a very large dataset, and is more likely to reflect reality.
Each sub-analysis is designed to assess influence where changes in the environment of the Court, the overall political environment of the country, or case oriented issue areas might affect the influence of an actor like the executive branch.
Finally, I have included an analysis of the sources of influence using only the cases in which the Office of the Solicitor General participated either as a party or an amicus curiae. The first group of sub-analyses reflect Court based changed circumstances or differences that might affect the influence. There are two sets of analyses included under
120 the heading Court variance. These breakdowns include analysis by chief justice, and by individual justice. The second group of analyses cover political variance. These include changes in the President and changes in the Solicitor General. The third group cover issue variance. These include analyses of the influence in foreign policy cases v. domestic policy, statutory v. constitutional law, and criminal law v. civil law. The final analysis is designed to assess the congruence of the Office of the Solicitor General’s position with the positions of the other actors in the system.
A. COURT VARIANCE MODELS
Analyses of the influence of outside actors based on variance on the Supreme
Court allows me to determine whether the influence of these outside actors is consistent when the political environment of the Supreme Court changes. Just because the Office of the Solicitor General exerts influence on the Supreme Court’s decision-making over the course of a forty-six year period does not mean that the Office will exert influence during every sub-period of the Court’s history, or for every justice on the Court. These analyses address two questions. First, is the Office of the Solicitor General influential during the tenures of each of the three chief justices of the Supreme Court between 1953 and 1999?
Second, does the Office of the Solicitor General influence each individual justice on the
Court regardless of how liberal or conservative, or does the Office tend to exert influence only on the Court moderates, and thus the Court decisions that are dictated by the median justice on the Court? These questions are important for understanding the overall impact of the Office of the Solicitor General on the Court’s decisions. If the Office of the 121 Solicitor General exerts some influence where some Court related sub-set of the data is employed it is possible to state that the Office exerts a broad-based influence that transcends ideological or political party connections. If however, the Office of the
Solicitor General is only influential when compared to the Court ideology (through the median justice) and not at the sub-sample level, then the Office’s influence comes from their ability to move not the ideologically strong, but only the ideologically neutral.
There are two primary ways to view time based Court differences that suggest different analyses. The Court could be analyzed by natural court, viewing every change in membership as a new court, and thus a new subset for analysis; or the Court can be viewed encompassing periods based on changes in the Chief Justice. I have chosen to do both. I begin with the analysis of the Court under each separate Chief Justice to encompass broad based change on the Court. I then more briefly mention the results for the natural courts.
The analysis of the influence of the Office of the Solicitor General by Chief
Justice employs the same model as for the full data set, but broken into three parts for each of the three Chief Justices. Earl Warren’s tenure as Chief Justice encompasses the
1953 through 1968 terms of the Court; Warren Burger’s tenure as Chief Justice encompasses the 1969 through 1985 terms of the Court; and William Rehnquist’s tenure as Chief Justice encompasses the 1986 through 1999 terms of the Court. The data on the influence of the Office of the Solicitor General on the Court in each of the Chief Justice’s tenures indicates that from a summary analysis, all three chiefs have treated the Office of the Solicitor General relatively the same (Figure 14). The Office of the Solicitor
General’s ideological position creates a 13 to 21 percent swing in the Office’s preferred 122 direction as compared to cases where the Office is not involved. The smallest effect is a
13.3% swing in favor of a conservative position taken by the Office of the Solicitor
General for the Rehnquist Court. While the largest effect is a 21.7% swing in favor of a conservative position espoused by the Office of the Solicitor General during the Burger
Court years.
Percent Liberal Vote When:
Court Liberal SG No SG Conservative SG All Cases
Warren 81.0% 66.3% 52.3% 63.4%
Burger 63.8% 48.1% 26.4% 49.9%
Rehnquist 61.3% 46.9% 33.6% 44.8%
Figure 14: Percent of Cases with a Liberal Vote by Ideological Position of the Office of the Solicitor General for Each of the Three Chief Justice Tenures between 1953-1999.
The simple descriptive statistics suggest that the Office of the Solicitor General is successful, and that the success is likely to be the result of influence. A look at a regression model and predicted probabilities sheds further light on whether this success is actually influence. What is revealed in Figure 15 is that the Office of the Solicitor
General consistently exerts influence on the Court’s decisions independent of the experience of the attorneys and the Court’s median justice ideology. Regardless of the era of the Supreme
123 Variables Warren Court Burger Court Rehnquist Court Court Ideology 1.29 2.10* 1.40 (.813) (1.19) (1.15) Liberal Petitioner .590*** .670*** .355*** (.076) (.056) (.069) Liberal SG .538*** .359*** .303*** (.099) (.091) (.118) Conservative SG -.281** -.560*** -.435*** (.089) (.085) (.101) Liberal State Govt .196 .087 -.129 (.144) (.105) (.131) Conservative State Govt .007 -.088 -.127 (.088) (.068) (.083) Congress Ideology .169 -.607 -.097 (.600) (.886) (.495) Public Opinion Ideology -.007 -.020 .002 (.008) (.016) (.021) Attorney Experience .003 .007*** .003* Advantage (.003) (.002) (.002) Liberal SG Amicus .471*** .433*** .441*** (.166) (.100) (.108) Conservative SG Amicus -.639*** -.475*** -.565*** (.234) (108) (.105) Constant -.454 -.201 -.877 (.572) (.756) (1.65) n=1722 n=2308 n=1436 Prob>chi2= .000 Prob>chi2= .000 Prob>chi2= .000
*=significant <.10; **=significant at < .05; ***=significant at <.01 Values in parentheses are standard errors.
Figure 15: Influence of Independent Actors on the Court’s Decisions by Chief Justice Tenure.
124 Court, whether the more liberal Warren years, the transition of the Burger years, or the generally more conservative Rehnquist years, the Office of the Solicitor General does not lose its ability to influence the Court’s decisions. The magnitude of the effect may not be consistent over time, but even the magnitude does not fluctuate as much as might be expected given the changes in Court personnel as will be demonstrated by looking at the predicted probabilities for the models of Chief Justices. Before moving to the predictions, I first want to explore some interesting points about the differences in significant influences on the decisions for each Chief Justice.
The factor that determines the ideological outcome of the Court most consistently and strongly for all three chief justice eras is the ideological position of the petitioner. As there has consistently been shown to be a bias in favor of taking cases the Court wants to overturn, this should not be surprising. What is somewhat surprising is the relative strength of the Office of the Solicitor General’s position as a predictor of outcomes compared to the Court’s median justice ideology. According to the analyses of the three
Supreme Court eras since 1953, the ideology of the Court’s median justice has an effect approaching significant, after controlling for other external actors, for only the Burger
Court years. However, note the large standard errors which are related to the small amount of variance in the median justice during a given Chief Justice’s tenure. On the other hand the Office of the Solicitor General’s influence is consistent across all three eras of the Court.
In assessing the other potential influences on the Court, the experience of the attorneys sticks out as the only other significant variable for any Court era. The experience of the attorney variable is significant for the Burger and Rehnquist Courts, 125 and not for the Warren Court. It is unclear why the Burger and Rehnquist Courts would value attorney experience more than the Warren Court. The value of the experience of the attorneys during the Burger and Rehnquist years remains even when I control for any potential extra advantage gained by the Office of the Solicitor General for the Office’s huge experience advantage. The impact is similar though the standard errors change.
For the Rehnquist years the influence of the Office of the Solicitor General is heightened by its greater experience above and beyond the boost the average attorney receives from their experience. Once the individual justices are evaluated below it may become clear that for a greater number of the justices during the Warren years, the experience of the attorneys provided no advantage potentially because of the fact that during these years the Court was wrestling with many civil rights and liberties issues for the first time and modifying the previous Court eras’ economic policy issues indicating that prior experience with the Court provided less cues about how to approach the Court. Further, there were 11 natural courts in a 16 term span during the Warren years, whereas during the Burger and Rehnquist Courts there were only 7 natural courts during a 17 term span
(Burger) and 7 natural courts during a 19 term span (Rehnquist). The greater consistency in the justices on the Court during the last two chief justice tenures may have helped the attorneys know what to expect from the Court making their prior experiences more valuable.
The raw statistics from the probit models mean little without a substantive impact as indicated by the percent liberal outcomes derived from the predicted probabilities
(Figure 16). The substantive results are quite telling. The Office of the Solicitor General switching the ideological position of their briefs from a conservative position to a liberal 126 position results in a minimum of an 18.2% greater chance of a liberal outcome for the
Rehnquist Court, and a maximum of a 27% greater chance of a liberal outcome for the
Burger Court with the Warren Court in between at 19.1% greater chance of a liberal outcome. The overall impact for the Office of the Solicitor General as amicus curiae followed a similar trend, though the magnitude of the effect is slightly greater in both the
Warren and Rehnquist Courts, but the same for the Burger Court. In contrast a change from the most conservative Court to the most liberal Court during the time of the study only results in 12.1% greater chance of a liberal outcome for the Rehnquist Court, a 16% greater chance of a liberal outcome for the Warren Court and a 6.4% greater chance of a liberal outcome for the Burger Court. Further, only for the Burger Court was the Court ideology significant reducing the confidence in the predictions for the Rehnquist and
Warren Courts. The only 2 factors with greater impacts than the Office of the Solicitor
General’s ideology are the ideological position of the petitioner, and the experience of the attorneys, and experience only at the extremes of experience advantage.
It does, however, appear that there is some relationship between the Court ideology and the Office of the Solicitor General’s ideology. The influence of the Office of the Solicitor General is greatest in the direction of the overall ideological leanings of the Court as a whole. Thus a liberal Office of the Solicitor General position during the
Warren Court and conservative positions during the Burger and Rehnquist Courts result in greater movement in the direction of the Office’s position than when the Office is advocating counter to the Court’s position, although the effect is not trivial in this opposing direction. This would seem to suggest that the Office of the Solicitor General can firmly entrench a liberal or conservative leaning moderate on the Court on the side 127 which they lean easier than they can move them to the other side. This is not surprising, and does not reduce the influence of the Office of the Solicitor General, it simply indicates that the influence is not even for the Office. These results suggest that the
Office of the Solicitor General has a relatively large influence on the Court’s decisions.
This result is supported by a look at the individual natural courts during each of the Chief
Justice’s tenures.
128 Independent Variable Warren Court Burger Court Rehnquist Court Values % % Diff % % Diff % % Diff Baseline Prediction* 80.2 87.2 53.7 Conservative Petitioner 62.6 -17.6 74.1 -13.1 45.1 -8.6 Most Liberal Median Justice 84.7 +4.5 92.6 +5.4 67.1 +13.4 Most Conservative Median Justice 68.0 -12.2 80.4 -6.8 48.6 -5.1 Liberal Solicitor General 90.8 +10.6 91.9 +4.7 61.0 +7.3 Conservative Solicitor General 72.4 -7.8 76.4 -10.8 43.0 -10.7 Liberal State Government 84.6 +4.4 88.4 +1.2 50.7 -3.0 Conservative State Government 80.3 +.1 85.6 -1.6 50.6 -3.1 Liberal Public Opinion 80.2 ----- 87.1 -.1 53.7 ----- Conservative Public Opinion 80.2 ----- 87.2 ----- 53.7 ----- Most Liberal Congress 80.8 +.6 86.7 +.5 53.3 -.4 Most Conservative Congress 79.6 -.6 87.3 +.1 54.0 +.3 Max Liberal Advantage 86.4 +6.2 96.2 +9.0 63.3 +9.6 Average SG Liberal Advantage 81.2 +1.0 88.8 +1.6 54.9 +1.2 Min Liberal Advantage 80.3 +.1 87.3 +.1 53.8 +.1 Min Conservative Advantage 80.2 ----- 87.1 -.1 53.6 -.1 Average SG Conservative Advantage 79.3 -.9 85.7 -1.5 52.7 -1.0 Max Conservative Advantage 69.1 -11.1 67.5 -19.5 43.8 -9.9 Liberal SG Amicus 89.6 +9.4 92.7 +5.5 64.3 +10.6 Conservative SG Amicus 60.7 -19.5 78.3 -8.9 40.1 -10.6
* Baseline Prediction based on Liberal Petitioner, no Office of the Solicitor General, no state government, Mean justice on the Court (.528), neutral public opinion (.5), neutral Congress (0), and no experience advantage to either party. All predicted probabilities calculated using Clarify for Stata 7.
Figure 16: Predicted Percentages of Liberal Outcomes in Cases with Various Values of the Independent Variables by Supreme Court Chief Justice.
129 For the natural courts I have chosen not to use each natural court as a completely separate analysis because this would result in 10 natural courts out of the 25 during the time period not having enough cases for analysis (one had only 8 observations, while another had only 22). These natural courts tended to be courts where there was either a shortage of a justice during confirmation processes (weak court) or where there were two or three changes in a relatively short time period. Because of these difficulties I have consolidated a number of natural courts to allow analysis to occur. All weak courts have been consolidated with the previous natural court. All natural courts encompassing less than two full terms have been consolidated with the previous or subsequent term depending on appointing president so that the changes are more likely to reflect consistent shifts in ideology on the Court. This gives me 7 natural courts rather than 11 while Warren was Chief Justice, 4 natural courts rather than 7 while Burger was Chief
Justice, and 4 rather than 7 natural courts during the current Rehnquist tenure as Chief
Justice.
The data on the natural courts during each of the tenures of the Chief Justices between 1953 and 1999 largely support the findings from the full tenures. As with the full tenures, the ideological position of the petitioner is the most consistent and strongest factor contributing to case outcomes. While not completely consistent across each natural court the influence of the Office of the Solicitor General is a significant factor influencing the Court’s decisions in 14 out of the 15 natural courts (in either the liberal or conservative direction, and sometimes in both), with the only exception coming during the first Rehnquist natural court (1986 and part of 1987 terms). The ideology of the
Office of the Solicitor General as an amicus is significant in each of the fifteen natural 130 courts, although once again not always in both directions. The influence of the Office of the Solicitor General through these natural courts is more consistent than of the ideology of the Court which is only significant in 5 out of 15 natural courts. In fact attorney experience is consistently more significant throughout the natural courts than the court’s ideology. The evidence from the natural courts data supports the overall findings for each of the chief justices.
A more detailed look at the individual justices can shed further light on the impact of the Office of the Solicitor General on the Court’s decisions. A cursory look at the case outcomes by justice to determine the direction of the justice’s vote when the Office of the
Solicitor General takes a liberal or conservative position compared to when the Office is not involved, reveals that even at the individual justice level, the Office appears to exert some pull. Whether liberal or conservative, the individual justices vote in favor of the
Office of the Solicitor General’s position more often than one would expect given the justices’ base ideologies. In fact as Figure 17 indicates, only the votes of three justices out of 29 displayed any evidence that the Office of the Solicitor General’s preferences were even partially irrelevant for their votes. Only Douglas, Goldberg and Jackson do not appear to be affected by the Office of the Solicitor General regardless of the Office’s ideological position. Goldberg does not appear to cast different votes for liberal Office of the Solicitor General requests, but does appear to vote differently for conservative requests. Jackson is the opposite, changing his vote for liberal requests but not conservative ones. Douglas on the other hand appears to not change his vote for conservative requests, and votes against liberal requests by the government.
131 Percent Liberal Vote When: Justice Liberal SG No SG Conservative SG All Cases Harlan 59%* (+16) 43% 36%* (-7) 44% Black 82%* (+10) 72% 70% (-2) 74% Douglas 69%* (-15) 84% 85% (+1) 81% Stewart 58%* (+8) 50% 43%* (-7) 50% Marshall 77% (+2) 75% 62%* (-13) 73% Brennan 78% (+4) 74% 62%* (-12) 72% White 76%* (+27) 49% 27%* (-22) 48% Warren 84%* (+8) 76% 64%* (-12) 75% Clark 80%* (+22) 58% 35%* (-23) 56% Frankfurter 62%* (+19) 43% 41% (-2) 47% Whittaker 51%* (+9) 42% 34%* (-8) 41% Burton 70%* (+24) 46% 32%* (-14) 46% Reed 78%* (+26) 52% 28%* (-24) 50% Fortas 77% (+2) 75% 52%* (-23) 71% Goldberg 73% (-3) 76% 63%* (-13) 73% Minton 68%* (+11) 57% 36%* (-21) 53% Jackson 73%* (+38) 35% 42% (+7) 43% Burger 56%* (+21) 35% 18%* (-17) 34% Blackmun 69%* (+13) 56% 32%* (-24) 53% Powell 50%* (+8) 42% 24%* (-18) 39% Rehnquist 49%* (+19) 30% 18%* (-12) 30% Stevens 64% (+2) 62% 50%* (-12) 60% O’Connor 52%* (+11) 41% 26%* (-15) 39% Scalia 50%* (+15) 35% 32% (-3) 35% Kennedy 60%* (+18) 42% 32%* (-10) 42% Souter 67%* (+8) 59% 42%* (-17) 56% Thomas 40%* (+7) 33% 29% (-4) 32% Ginsburg 77%* (+15) 62% 43%* (-19) 59% Breyer 78%* (+18) 60% 42%* (-18) 57%
Note: Underline indicates Justice’s votes are counter to expectations for some categories. Bold indicate Justice’s votes never exceed 50% liberal for the given condition. * indicates magnitude of difference is significant. ( ) indicates the difference from the no SG category.
Figure 17: Percent Liberal Individual Justice Votes for All Cases, Liberal Office of the Solicitor General, Conservative Office of the Solicitor General, and No Office of the Solicitor General Participation.
132 Thirteen of the twenty-nine justices vote liberal less than 50% of the time and yet only two of these justices, Rehnquist at 49% and Thomas at 40%, do not vote liberal at least 50% of the time when the Office of the Solicitor General is requesting a liberal outcome. On the other side, fourteen of the twenty-nine justices vote liberal more than
50% of the time. Of these fourteen, seven justices never vote liberal less than 50% of the time even when the Office of the Solicitor General is requesting a conservative outcome
(Black, Douglas, Marshall, Brennan, Warren, Fortas and Goldberg). Excluding the three justices who do not appear to be consistently affected by the Office of the Solicitor
General, the largest differences from the no Office of the Solicitor General setting appear to be on Reed at 50% and White at 49%, two of the most moderate justices on the Court.
The smallest differences are on Thomas, the most conservative member of the Court, at
11% and Black, the third most liberal member of the Court, at 12%.
Individually there are a number of other interesting results. Scalia appears to give more credence to liberal Office of the Solicitor General requests than conservative requests (15% for liberal, 3% for conservative), as do Frankfurter (19% for liberal, 2% for conservative) and Black (10% for liberal, 2% for conservative). Marshall (2% for liberal, 13% for conservative), Fortas (2% for liberal, 23% for conservative) and Stevens
(2% for liberal, 12% for conservative) go in the opposite direction. Not all of these are favoring the advocacy of their preferred ideological position. In fact, only Black showed a preference in the expected direction.
Because the individual action is so different from the Court action, I will provide a look at the influence of the Office of the Solicitor General through the use of a number of separate models of the decision-making process. The differences are not great, but 133 assess different aspects of the potential influence of the justices, in part due to the inconsistencies in justice action highlighted in Figure 17. I will begin with a model that is equivalent to the full data set model except that the ideology of the justice can not be included as there is no variance in the ideology. The ideology of the justice is therefore present through the constant. I will then assess the differential influence of the Office of the Solicitor General based on ideological congruence with the justices.
With only a few exceptions, the strongest influence variable in Figure 18 is still the petitioners ideology, followed closely by the Office of the Solicitor General’s ideology, both as a party and as amicus curiae. The influence of the Office of the
Solicitor General is significant for every justice, except Goldberg, in either the liberal or conservative direction, and sometimes both. Of the 29 justices for 17 of them the ideology of the Office of the Solicitor General significantly impacts the ideological direction of the case in both a liberal and conservative direction. 5 justices are only influenced by a liberal request, and 6 justices are only influenced by a conservative request. As expected from the summary statistics in Figure 17, Goldberg is not influenced at all by the Office of the Solicitor
134 Variables Harlan Black Douglas Stewart Marshall Liberal .740*** .644*** .700*** .746*** .565*** Petitioner (.075) (.071) (.060) (.054) (.048) Liberal .463*** .494*** .512*** .464*** .378*** SG (.099) (.095) (.085) (.081) (.080) Conservative -.371*** -.365*** -.335*** -.376*** -.546*** SG (.090) (.085) (.076) (.076) (.073) Liberal .166 .143 .092 .122 .062 State Govt (.148) (.136) (.114) (.107) (.093) Conservative -.136 -.100 -.055 -.070 -.099* State Govt (.085) (.082) (.071) (.065) (.058) Congress .313 .395 -.013 1.54*** 1.41*** Ideology (.379) (.379) (.361) (.391) (.540) Public Opinion .006 .008 .013* .045*** .018** Ideology (.009) (.007) (.007) (.006) (.007) Attorney Exp. -.0002 .001 .003 .005** .007*** Advantage (.002) (.002) (.002) (.002) (.002) Liberal SG .403*** .389*** .336*** .400*** .381*** Amicus (.153) (.147) (.122) (.100) (.087) Conservative -.686*** -.666*** -.536*** -.560*** -.578*** SG Amicus (.211) (.206) (.129) (.129) (.087) Constant -.459 -.572 -.978** -3.11*** -1.40*** (.575) (.459) (.432) (.397) (.431) n=1755 n=1914 n=2451 n=2749 n=3058 chi2=.000 chi2=.000 chi2=.000 chi2=.000 chi2=.000
Figure 18: Individual Justice Votes as Determined by Potential Outside Influences, 1953-1999.
Figure 18 continued on next page
135 Figure 18 continued
Variables Brennan White Warren Clark Frankfurter Liberal .635*** .640*** .585*** .529*** .243** Petitioner (.042) (.044) (.077) (.082) (.104) Liberal .425*** .415*** .551*** .465*** .601*** SG (.065) (.070) (.101) (.107) (.136) Conservative -.453*** -.528*** -.270*** -.312*** -.186 SG (.060) (.065) (.090) (.095) (.118) Liberal .116 .078 .180 .144 .183 State Govt (.081) (.084) (.146) (.151) (.186) Conservative -.075 -.066 .031 .012 -.041 State Govt (.051) (.052) (.090) (.097) (.133) Congress .250 1.37*** .889** .809 -.233 Ideology (.291) (.457) (.403) (.540) (.997) Public Opinion .028*** .028*** .0001 -.002 -.009 Ideology (.005) (.005) (.008) (.008) (.010) Attorney Exp. .007*** .006*** .002 .003 -.002 Advantage (.001) (.001) (.003) (.003) (.004) Liberal .368*** .389*** .462*** .409** .933*** SG Amicus (.079) (.077) (.167) (.178) (.346) Conservative -.593*** -.674*** -.617*** -.627** -.030 SG Amicus (.084) (.081) (.233) (.251) (.347) Constant -1.90*** -2.00*** -.050 .137 .569 (.304) (.298) (.488) (.533) (.620) n=4261 n=3915 n=1682 n=1466 n=866 chi2=.000 chi2=.000 chi2=.000 chi2=.000 chi2=.000
Figure 18 (continued): Individual Justice Votes as Determined by Potential Outside Influences, 1953-1999.
Figure 18 continued on next page
136 Figure 18 continued
Variables Whittaker Burton Reed Fortas Goldberg Liberal .482*** .281** -.009 .971*** .964*** Petitioner (.135) (.133) (.180) (.182) (.190) Liberal .548*** .469*** .467** .799** .126 SG (.173) (.177) (.230) (.251) (.241) Conservative -.290* -.217 -.325* .088 -.958*** SG (.153) (.149) (.192) (.223) (.248) Liberal .359 .387 -.112 .498 -.324 State Govt (.232) (.243) (.327) (.398) (.368) Conservative -.185 -.033 -.052 .360* .039 State Govt (.163) (.181) (.241) (.191) (.212) Congress .377 -6.56** -2.94 2.22 1.77 Ideology (1.24) (3.17) (4.78) (2.12) (2.88) Public Opinion -.028 .009 .056 .055 .104 Ideology (.023) (.017) (.037) (.133) (.073) Attorney Exp. -.005 .0001 .011 .008 .009 Advantage (.005) (.005) (.008) (.007) (.006) Liberal .744* .989* ------.337 .054 SG Amicus (.450) (.555) ------(.312) (.296) Conservative -.400 .107 -.392 -1.00* -1.39** SG Amicus (.495) (.514) (.640) (.543) (.663) Constant 1.70 -1.15 -2.93 -4.21 -7.08 (1.48) (1.02) (1.83) (8.33) (4.97) n=546 n=496 n=289 n=363 n=329 chi2=.000 chi2=.002 chi2=.022 chi2=.000 chi2=.000
Figure 18 (continued): Individual Justice Votes as Determined by Potential Outside Influences, 1953-1999.
Figure 18 continued on next page
137 Figure 18 continued
Variables Minton Jackson Burger Blackmun Powell Liberal -.108 -.418 .680*** .541*** .615*** Petitioner (.194) (.401) (.056) (.048) (.060) Liberal .441* 1.91*** .358*** .339*** .340*** SG (.243) (.670) (.091) (.078) (.097) Conservative -.272 .496 -.554*** -.574*** -.582*** SG (.210) (.461) (.085) (.072) (.091) Liberal -.092 .470 .075 .066 .090 State Govt (.336) (.529) (.105) (.089) (.108) Conservative -.029 .957** -.093 -.092 -.078 State Govt (.255) (.488) (.068) (.057) (.072) Congress -4.95 ------.126 .076 -.235 Ideology (4.86) ------(.800) (.490) (.894) Public Opinion .129** ------.003 .002 -.011 Ideology (.052) ------(.013) (.006) (.015) Attorney Exp. .006 .046** .007*** .005*** .009*** Advantage (.007) (.023) (.002) (.001) (.002) Liberal ------.446*** .408*** .397*** SG Amicus ------(.100) (.082) (.103) Conservative -.506 ------.480*** -.565*** -.491*** SG Amicus (.648) ------(.108) (.083) (.108) Constant -6.98*** -.419 -2.00 -2.09*** .313 (2.67) (.411) (.762) (.352) (.931) n=260 n=69 n=2293 n=3109 n=2037 chi2=.015 chi2=.003 chi2=.000 chi2=.000 chi2=.000
Figure 18 (continued): Individual Justice Votes as Determined by Potential Outside Influences, 1953-1999.
Figure 18 continued on next page
138 Figure 18 continued
Variables Rehnquist Stevens O’Connor Scalia Kennedy Liberal .551*** .489*** .435*** .349*** .382*** Petitioner (.046) (.050) (.058) (.070) (.076) Liberal .354*** .317*** .298*** .289** .295** SG (.075) (.082) (.097) (.119) (.131) Conservative -.533*** -.561*** -.583*** -.424*** -.443*** SG (.068) (.074) (.084) (.101) (.110) Liberal .017 .011 -.112 -.136 -.146 State Govt (.084) (.092) (.107) (.131) (.147) Conservative -.100* -.112* -.112 -.119 -.123 State Govt (.055) (.059) (.069) (.083) (.091) Congress .025 .023 .123 .221 .058 Ideology (.285) (.294) (.331) (.457) (.538) Public Opinion -.002 -.001 -.006 -.008 -.004 Ideology (.005) (.005) (.007) (.018) (.025) Attorney Exp. .005*** .005*** .004*** .003* .002 Advantage (.001) (.001) (.001) (.002) (.002) Liberal .446*** .443*** .454*** .417*** .541*** SG Amicus (.075) (.080) (.093) (.108) (.117) Conservative -.531*** -.541*** -.564*** -.590*** -.610*** SG Amicus (.077) (.082) (.089) (.106) (.117) Constant -.149 -.176 .181 .781 .040 (.318) (.321) (.413) (1.13) (1.60) n=3409 n=2857 n=2134 n=1423 n=1205 chi2=.000 chi2=.000 chi2=.000 chi2=.000 chi2=.000
Figure 18 (continued): Individual Justice Votes as Determined by Potential Outside Influences, 1953-1999.
Figure 18 continued on next page
139 Figure 18 continued
Variables Souter Thomas Ginsburg Breyer Liberal .539*** .498*** .473** .549*** Petitioner (.091) (.097) (.112) (.123) Liberal .284* .364** .348* .304 SG (.156) (.162) (.193) (.207) Conservative -.409*** -.295** -.270* -.279 SG (.128) (.137) (.158) (.174) Liberal -.255 -.198 -.327 -.355 State Govt (.170) (.174) (.209) (.229) Conservative -.132 -.036 -.090 -.163 State Govt (.109) (.117) (.137) (.150) Congress -.207 -.114 .396 .186 Ideology (.607) (.613) (.674) (.683) Public Opinion .010 .010 -.039 -.028 Ideology (.031) (.032) (.042) (.046) Attorney Exp. -.0001 -.0003 .0007 .002 Advantage (.002) (.002) (.002) (.002) Liberal .561*** .603*** .623*** .547*** SG Amicus (.132) (.139) (.158) (.176) Conservative -.461*** -.386** -.269 -.290 SG Amicus (.140) (.151) (.175) (.198) Constant -.964 1.01 2.06 1.39 (1.97) (2.01) (2.63) (2.88) n=870 n=760 n=566 n=477 chi2=.000 chi2=.000 chi2=.000 chi2=.000
Figure 18 (continued.): Individual Justice Votes as Determined by Potential Outside Influences, 1953-1999.
140 General, and Douglas is the only justice to be influenced in the conservative direction by
a liberal Office of the Solicitor General request.
The regression model supports the impression from the summary statistics that the
Office of the Solicitor General exerts some influence over the decisions of the Supreme
Court above the expectations based on the justices’ ideologies. The predicted
probabilities derived from the models for each justice support the idea that for most
justices there is a substantial impact of the ideology of the Office of the Solicitor General
on the Supreme Court. Every justice except Goldberg shows a swing of in excess of 10% in liberal outcomes when the Office of the Solicitor General switches their request from liberal to conservative or vice versa for both party and amicus.
Without the Office of the Solicitor General as amicus variables there were some interesting findings with respect to state governments. Prior to the appointment of
Burger the influence of state government actors was inconsistent at best, and for at least six justices was counter to expectations about that influence as Brennan, Marshall,
Frankfurter, Fortas, Jackson, and Douglas all had significant findings for conservative state government requests that indicated that they were influenced to vote against the state government position. This finding held true for all of these justices except
Frankfurter for liberal requests by state governments as well, though not always significantly. However, beginning with Burger all of the conservative justices from
Burger through Thomas are significantly influenced by conservative positions espoused by state governments, though not liberal positions. The effect disappeared completely for all justices when the amicus variables were included. This suggests that the states were
141 winning or losing not because of their own efforts, but rather because of the opposition or support of the United States government as amicus curiae.
Another way to think about the influence of the Office of the Solicitor General, and to confirm that the success is not a result of congruence of ideas between the Office’s position and that of the Court is to look at the influence of the Office as it varies according to their appointing president. In these models for each justice there are four variables to assess the impact of the Office of the Solicitor General’s position. The original liberal and conservative variables are split to reflect the party of the Solicitor
General, President pair as well. All four variables are important, but the variables that indicate when the Office of the Solicitor General is of a different party than the justice and remains true to their ideology is the most important because it shows that the justice is influenced not by ideology, but rather by the Office of the Solicitor General. The variables representing instances of a Office of the Solicitor General of the same party as the justice who requests an action counter to that ideology are also important. It is less clear whether the justice’s response in this setting is to the party of the Office of the
Solicitor General or to the Office as a legal actor. Figure 19 lays out the results for each justice of this more nuanced approach to the influence of the Office of the Solicitor
General.
142 Variables Harlan Black Douglas Stewart Marshall Liberal .741*** .645*** .697*** .745*** .565*** Petitioner (.075) (.071) (.060) (.054) (.048) Liberal SG .566*** .575*** .634*** .463*** .331** Dem. Pres. (.135) (.135) (.131) (.104) (.152) Conservative SG -.277*** -.267*** -.143 -.281*** -.449*** Dem. Pres. (.123) (.121) (.118) (.099) (.145) Liberal SG .375*** .437*** .447*** .465*** .393*** Rep. Pres. (.126) (.116) (.100) (.109) (.089) Conservative SG -.436*** -.420*** -.414*** -.453*** -.566*** Rep. Pres. (.106) (.098) (.085) (.092) (.078) Liberal .168 .142 .088 .121 .063 State Govt (.148) (.136) (.114) (.107) (.093) Conservative -.129 -.093 -.046 -.069 -.099* State Govt (.086) (.082) (.071) (.065) (.058) Congress .109 .220 -.235 1.36*** 1.35** Ideology (.403) (.400) (.374) (.428) (.572) Public Opinion .002 .006 .008 .043*** .018*** Ideology (.004) (.007) (.007) (.006) (.007) Attorney Exp. -.0003 .001 .003 .005** .007*** Advantage (.002) (.002) (.002) (.002) (.002) Liberal SG .417*** .401*** .351*** .402*** .381*** Amicus (.154) (.147) (.122) (.100) (.087) Conservative -.691*** -.666*** -.536*** -.560*** -.578*** SG Amicus (.212) (.206) (.156) (.129) (.087) Constant -.234 -.430 -.703 -2.99*** -1.40*** (.594) (.471) (.448) (.409) (.432) n=1755 n=1914 n=2451 n=2749 n=3058 chi2=.000 chi2=.000 chi2=.000 chi2=.000 chi2=.000
Figure 19: Individual Justice Votes as Determined by Potential Outside Influences with Office of the Solicitor General Ideology Varying by Appointing President, 1953-1999.
Figure 19 continued on next page
143 Figure 19 continued
Variables Brennan White Warren Clark Frankfurter Liberal .631*** .636*** .585*** .529*** .244** Petitioner (.042) (.044) (.077) (.082) (.104) Liberal SG .481*** .500*** .526*** .404*** .831*** Dem. Pres. (.099) (.104) (.137) (.149) (.401) Conservative SG -.283*** -.370*** -.259** -.299** -.109 Dem. Pres. (.093) (.099) (.123) (.136) (.267) Liberal SG .397*** .364*** .573*** .514*** .585*** Rep. Pres. (.077) (.084) (.127) (.135) (.139) Conservative SG -.522*** -.594*** -.276*** -.317*** -.218* Rep. Pres. (.067) (.072) (.107) (.111) (.121) Liberal .117 .079 .181 .145 .183 State Govt (.081) (.084) (.146) (.152) (.186) Conservative -.071 -.065 .031 .012 -.031 State Govt (.051) (.052) (.091) (.097) (.133) Congress .004 1.08** .900** .884 -.735 Ideology (.312) (.474) (.442) (.604) (1.08) Public Opinion .025*** .026*** .0002 -.001 -.011 Ideology (.005) (.005) (.008) (.008) (.010) Attorney Exp. .007*** .006*** .002 .003 -.002 Advantage (.001) (.001) (.003) (.003) (.004) Liberal .374*** .393*** .462*** .405** .963*** SG Amicus (.079) (.077) (.168) (.178) (.349) Conservative -.593*** -.673*** -.616*** -.627** -.037 SG Amicus (.084) (.081) (.233) (.251) (.348) Constant -1.73*** -1.88*** -.057 .127 .618 (.313) (.303) (.496) (.535) (.622) n=4261 n=3915 n=1682 n=1466 n=866 chi2=.000 chi2=.000 chi2=.000 chi2=.000 chi2=.000
Figure 19 (continued): Individual Justice Votes as Determined by Potential Outside Influences with Office of the Solicitor General Ideology Varying by Appointing President, 1953-1999.
Figure 19 continued on next page
144 Figure 19 continued
Variables Whittaker Burton Reed Fortas Goldberg Liberal .483*** .281** -.009 .971*** .961*** Petitioner (.135) (.133) (.180) (.183) (.190) Liberal SG .740* ------.788*** .126 Dem. Pres. (.420) ------(.252) (.240) Conservative SG -.040 ------.131 -.978*** Dem. Pres. (.279) ------(.225) (.250) Liberal SG .529*** .469*** .467** ------Rep. Pres. (.179) (.177) (.230) ------Conservative SG -.336** -.217 -.325* ------Rep. Pres. (.159) (.149) (.193) ------Liberal .357 .387 -.112 .498 -.326 State Govt (.232) (.243) (.327) (.398) (.368) Conservative -.178 -.033 -.052 .358* .040 State Govt (.163) (.181) (.241) (.191) (.212) Congress -.101 -6.56** -2.94 2.46 1.97 Ideology (1.33) (3.17) (4.78) (2.13) (2.89) Public Opinion -.033 .009 .056 .051 .100 Ideology (.023) (.017) (.037) (.133) (.073) Attorney Exp. -.005 .0001 .011 .007 .008 Advantage (.005) (.005) (.008) (.007) (.006) Liberal .796* .989* ------.338 .055 SG Amicus (.457) (.555) ------(.313) (.295) Conservative -.400 .107 -.392 -.998* -1.40** SG Amicus (.495) (.514) (.640) (.543) (.663) Constant 1.96 -1.15 -2.93 -4.02 -6.78 (1.50) (1.02) (1.83) (8.33) (4.98) n=546 n=496 n=289 n=359 n=328 chi2=.000 chi2=.002 chi2=.022 chi2=.000 chi2=.000
Figure 19 (continued): Individual Justice Votes as Determined by Potential Outside Influences with Office of the Solicitor General Ideology Varying by Appointing President, 1953-1999.
Figure 19 continued on next page
145 Figure 19 continued
Variables Minton Jackson Burger Blackmun Powell Liberal -.108 -.418 .680*** .542*** .614*** Petitioner (.194) (.402) (.056) (.048) (.060) Liberal SG ------.276* .209 .189 Dem. Pres. ------(.158) (.145) (.165) Conservative SG ------.498*** -.578*** -.552*** Dem. Pres. ------(.159) (.135) (163) Liberal SG .441* 1.91*** .390*** .381*** .403*** Rep. Pres. (.244) (.670) (.104) (.088) (.112) Conservative SG -.272 .496 -.568*** -.573*** -.589*** Rep. Pres. (.210) (.461) (.092) (.077) (.099) Liberal -.092 .470 .076 .066 .092 State Govt (.336) (.529) (.105) (.089) (.108) Conservative -.029 .957** -.093 -.092 -.077 State Govt (.255) (.488) (.068) (.057) (.072) Congress -4.95 ------.170 .213 -.042 Ideology (4.86) ------(.843) (.528) (.944) Public Opinion .129** ------.003 .001 -.010 Ideology (.052) ------(.013) (.006) (.016) Attorney Exp. .006 .047** .006*** .005*** .009*** Advantage (.007) (.023) (.002) (.001) (.002) Liberal ------.445*** .406*** .396*** SG Amicus ------(.100) (.082) (.103) Conservative -.506 ------.481*** -.566*** -.492*** SG Amicus (.648) ------(.108) (.083) (.108) Constant -6.98*** -.419 -2.14 -.336 .248 (2.67) (.411) (.764) (.353) (.935) n=260 n=69 n=2293 n=3109 n=2037 chi2=.015 chi2=.003 chi2=.000 chi2=.000 chi2=.000
Figure 19 (continued): Individual Justice Votes as Determined by Potential Outside Influences with Office of the Solicitor General Ideology Varying by Appointing President, 1953-1999.
Figure 19 continued on next page
146 Figure 19 continued
Variables Rehnquist Stevens O’Connor Scalia Kennedy Liberal .548*** .486*** .427*** .351*** .382*** Petitioner (.046) (.050) (.058) (.070) (.076) Liberal SG .240** .250** .177 .195 .202 Dem. Pres. (.114) (.116) (.166) (.168) (.170) Conservative SG -.458*** -.472*** -.440*** -.421*** -.409*** Dem. Pres. (.098) (.099) (.125) (.129) (.132) Liberal SG .418*** .369*** .347*** .360*** .402*** Rep. Pres. (.089) (.103) (.111) (.150) (.180) Conservative SG -.573*** -.626*** -.655*** -.431*** -.496*** Rep. Pres. (.077) (.088) (.096) (.126) (.147) Liberal .016 .011 -.115 -.137 -.149 State Govt (.084) (.092) (.107) (.131) (.147) Conservative -.101* -.113* -.114 -.121 -.125 State Govt (.055) (.059) (.069) (.083) (.091) Congress .049 .033 .169 .194 .055 Ideology (.287) (.295) (.333) (.462) (.538) Public Opinion -.003 -.001 -.007 -.014 -.003 Ideology (.005) (.005) (.007) (.018) (.025) Attorney Exp. .005*** .005*** .004*** .003* .002 Advantage (.001) (.001) (.001) (.002) (.002) Liberal .447*** .444*** .458*** .417*** .542*** SG Amicus (.075) (.080) (.093) (.108) (.117) Conservative -.532*** -.543*** -.567*** -.590*** -.613*** SG Amicus (.077) (.082) (.089) (.106) (.117) Constant -.135 -.166 .244 .703 .008 (.318) (.321) (.426) (1.14) (1.60) n=3409 n=2857 n=2134 n=1423 n=1205 chi2=.000 chi2=.000 chi2=.000 chi2=.000 chi2=.000
Figure 19 (continued): Individual Justice Votes as Determined by Potential Outside Influences with Office of the Solicitor General Ideology Varying by Appointing President, 1953-1999.
Figure 19 continued on next page
147 Figure 19 continued
Variables Souter Thomas Ginsburg Breyer Liberal .538*** .497*** .473*** .549*** Petitioner (.091) (.097) (.112) (.123) Liberal SG .276 .299* .348* .304 Dem. Pres. (.178) (.178) (.193) (.207) Conservative SG -.380*** -.290** -.270* -.279 Dem. Pres. (.141) (.145) (.158) (.174) Liberal SG .301 .597* ------Rep. Pres. (.277) (.321) ------Conservative SG -.494** -.323 ------Rep. Pres. (.212) (.268) ------Liberal -.257 -.199 -.327 -.355 State Govt (.171) (.174) (.209) (.229) Conservative -.133 -.038 -.090 -.163 State Govt (.109) (.117) (.137) (.150) Congress -.244 -.073 .396 .186 Ideology (.616) (.621) (.674) (.683) Public Opinion .014 .006 -.039 -.028 Ideology (.033) (.033) (.042) (.046) Attorney Exp. -.0001 -.0005 .001 .002 Advantage (.002) (.002) (.002) (.002) Liberal .562*** .603*** .623*** .547*** SG Amicus (.132) (.139) (.158) (.176) Conservative -.462*** -.389** -.269 -.290 SG Amicus (.140) (.151) (.175) (.198) Constant -1.19 -.788 2.06 1.39 (2.06) (2.10) (2.63) (2.88) n=870 n=760 n=566 n=477 chi2=.000 chi2=.000 chi2=.000 chi2=.000
Figure 19 (continued.): Individual Justice Votes as Determined by Potential Outside Influences with Office of the Solicitor General Ideology Varying by Appointing President, 1953-1999.
148 The justices are classified into three categories: liberal if they vote in excess of
55% of the time liberal, conservative if they vote less than 45% of the time liberal, and
moderates for those justices who are in between 45% and 55% liberal. Influence is most
obviously occurring when a liberal accepts a conservative position from a Republican
appointee, followed by a conservative position by a Democrat appointee, then a liberal
position by a Republican appointee, and finally a liberal position by a Democrat
appointee. The opposite ordering indicates greatest to least influence on a conservative
justice. It would be reasonable to expect that the moderates would be influenced by the
Office of the Solicitor General regardless of the position espoused by the Office of the
Solicitor General.
Of the 8 liberals in the study who served during a Republican presidency, all 8
show significant results when a Republican appointee argues a conservative position.20
In the opposite direction, of the 9 conservatives serving during a Democratic presidency, only 2 show significant results for Democrat appointed Solicitors General arguing the liberal position. A look at these justices suggest that the current Court conservatives were less likely to be influenced by Clinton’s Solicitors General than conservatives in previous eras, although the conservatives of whatever era are less likely to be influenced by the opposition. The moderates are more difficult to assess because of smaller numbers and tenures on the Court and not having been exposed to Democrat appointed Solicitors
General. Only half of the results can be assessed for three of the 7 moderates. For these three (Burton, Reed, and Minton), Reed accepts the influence of the Office of the
20Fortas, Goldberg, Breyer and Ginsburg never experienced a Republican appointed Office of the Solicitor General during the time period of this study. These 4 justices do not counter the hypothesis concerning Office of the Solicitor General, and it is not possible to tell as of yet whether their actions will support the hypothesis. 149 Solicitor General in both ideological directions. Of the remaining 4 moderates, 3 are influenced by the Office of the Solicitor General regardless of party affiliation or ideological position in the case. In the end, at least half of the justices are influenced even under circumstances where it is least expected based on the relative ideologies of the Office of the Solicitor General and the justices.
The Office of the Solicitor General, while not influential across the board for the justices, appears to be able to influence many of the justices on the Court much of the time. Even where no influence is indicated the small number of cases for many of the
1960's appointed justices do not allow me to reject the hypothesis that the Office of the
Solicitor General is influential. This influence even where it is not expected suggests that the Office of the Solicitor General has played an important role in Supreme Court decisions throughout the modern history of the Court. In each era of the Court the Office of the Solicitor General has exerted influence on the justices and the Court as a whole, and through most of the natural courts as well. There may be other ways to think about the influence of the Office of the Solicitor General under other conditions that may suggest that the Office of the Solicitor General’s influence is more limited than the overall analysis suggests. I now move to these further analyses in the following sections.
B. POLITICAL VARIANCE MODELS
Just as the data can be broken down and analyzed based on Court related factors, the data can also be broken down to assess other political factors. Each Office of the
Solicitor General may have different levels of success and influence, as might different 150 Presidents. The next group of analyses will cover these changes in the political
environment to determine whether the influence of the Office of the Solicitor General
holds. There are three analyses in this section. The first looks at Democrat presidents
versus Republican presidents in the aggregate. The second takes a closer look at each
president individually. The final analysis in this section looks at the influence of each
individual Solicitor General. As some of the hypotheses in chapter 3 suggest, there may
be less influence by the Office of the Solicitor General where the Office is acting more
politically as has been posited by Lincoln Caplan (1987) was the case with 2 of Reagan’s
Solicitors General, Fried and Lee.
The first analysis looks at whether the Office of the Solicitor General is
influential whether they are acting on behalf of a Republican president or a Democrat
president. By and large the results for Republican presidents and Democrat presidents
are very similar with respect to the influence of the Office of the Solicitor General
(Figure 20). For both Republican presidents and Democrat presidents court ideology,
petitioner ideology, attorney experience and Office of the Solicitor General ideology (in
both directions and for both party and amicus cases) are highly significant indicators of
Court outcomes. The Office of the Solicitor General exerts some influence over Court decisions regardless of the party of the President (and the Office of the Solicitor General for that matter). This holds true even though the party of the president and the ideology of the median justice on the Court are not always congruent. In fact during the 1953-1999 period, there are periods where there is complete congruence in both liberal and conservative directions and there is incongruence in both directions. Finding that the
Office of the Solicitor General is still influential with this mix of circumstances implies 151 that the Office of the Solicitor General’s influence is robust and has some independence from the ideologies of the actors. A closer look at the circumstances for each president’s tenure will come later in this section to assess this influence further.
152 Variables Republican President Democrat President Court Ideology 1.26*** 1.83*** (.513) (.268) Liberal Petitioner .509*** .666*** (.046) (.063) Liberal SG .409*** .399*** (.073) (.094) Conservative SG -.509*** -.331*** (.065) (.088) Liberal State Govt .057 .046 (.087) (.120) Conservative State Govt -.130** .007 (.057) (.074) Congress Ideology -913*** -.120 (.334) (.297) Public Opinion Ideology -.001 .005 (.006) (.006) Attorney Experience .005*** .003** Advantage (.001) (.002) Liberal SG Amicus .472*** .438*** (.090) (.100) Conservative SG -.540*** -.449*** Amicus (.085) (.129) Constant -.759* -1.55*** (.401) (.368) n= 3445 2021 Likelihood Ratio= 482.62* 359.10 Prob> chi2= .0000 .0000
*** p> .001; ** p> .05; * p> .1
Figure 20: Models of Influence on Liberal Outcomes by Presidential Party.
153 There are some notable differences between the Republican president years and
the Democrat president years. These differences occur with respect to state government
influence. Under Republican presidents the Court is influenced by state government
requests in the conservative direction. As was seen with the individual justices’ results,
and the fact that a strong majority of the Republican president years came after Burger
was appointed to the bench, this is likely to be the result of changes on the bench
bringing in more federalist oriented justices.
A closer look at these findings is possible by looking at the predicted percent of liberal outcomes in cases for Republican and Democrat president/Solicitor General tenures (Figure 21). The influence of the Office of the Solicitor General holds pretty steady regardless of the party of the president in office. Republican executives can expect a 32% shift in the percent of liberal outcomes depending on whether the Office of the Solicitor General is on the liberal or conservative side in a case. The shift is 35% when the Office of the Solicitor General is an amicus curiae. Democrat executives enjoy a 26% move as a party and a 31% move as an amicus in the percent of liberal outcomes when they adopt the alternate positions. The difference in the effect does vary significantly between the liberal position and the conservative position for Democrat and
Republican administrations. Republicans influence at a 13% rate on the liberal side compared to an 19% rate on the conservative side. Democrats on the other hand influence at close to the same rate regardless of position, 14% for liberal side and 12% for conservative side. Similar trends are true for amicus participation. As was evident in the individual justice analysis there is a tendency to defer to a president whose ideology more closely matches that of the Court median, although the deference still occurs in the 154 opposite direction for half the justices and in the aggregate for both Republican and
Democrat administrations.
In other respects, the predicted percentages reveal the difference between
Democrat and Republican administrations in the influence of the state governments in the conservative direction. For Democrats conservative state government positions influence at less than 1%, while for Republicans the influence is at about 5% change in outcomes.
Congress shows up as having a significant effect for Republican administrations as well, but not for Democrats. For Republicans there is an almost 10% swing depending on whether Congress is at its most liberal versus its least liberal. This works with the Court acting in the opposite direction from Congress under Republican administrations. This should not be surprising as during the majority of the Republican years from 1953-1999 the Congress was controlled by the Democrats. A request by the Office of the Solicitor
General that agrees with their president is counter to the ideology of Congress, with so much influence by the Office it is no wonder the Congress appears to influence opposite of the expected. Finally, the attorney experience is interesting in that the influence is greater for conservative experience during Republican administrations than on Democrat administrations. Even on the liberal side, the experience of the attorneys is greater for
Republican over Democrat administrations, though not of the same magnitude. Liberal attorneys with more experience than their opponent gain a 4% greater advantage under
Republicans than under Democrats, while conservative attorneys with more experience than their opponent gain an 8% greater advantage under Republicans.
155 Republican Democrat Independent Variable Predicted Liberal Percent Predicted Liberal Percent Values Percent Difference Percent Difference Baseline Prediction* 64.53% 56.21%
Conservative Petitioner 45.60% -18.93% 32.24% -23.97% Most Liberal Median Justice (.814) 76.63% +12.10% 72.11% +15.90% Most Conservative Median Justice (.296) 54.63% -9.90% 38.21% -18.00% Liberal Solicitor General 77.72% +13.19% 70.00% +13.79% Conservative Solicitor General 45.77% -18.76% 43.99% -12.22% Liberal State Government 66.56% +2.02% 57.95% +1.74% Conservative State Government 59.79% -4.74% 56.41% -.20% Liberal Public Opinion 64.53% 0.00% 56.25% +.04% Conservative Public Opinion 64.53% 0.00% 56.16% -.05% Most Liberal Congress 58.43% -6.10% 55.37% -.84% Most Conservative Congress 68.50% +3.97% 56.76% +.55% Difference in Experience Max Liberal Advantage 84.35% +19.82% 71.69% +15.48% Average SG Liberal Advantage 67.38% +2.85% 58.22% +2.01% 1 Case Liberal Advantage 64.70% +.17% 56.32% +.11% 1 Case Conservative Advantage 64.36% -.17% 56.09% -.12% Average SG Conservative Advantage 62.11% -2.42% 54.53% -1.68% Max Conservative Advantage 38.95% -25.58% 39.20% -17.01% Liberal Solicitor General Amicus 79.29% +14.76% 71.37% +15.16% Conservative Solicitor General Amicus 44.44% -20.09% 39.88% -16.33%
* Baseline Prediction based on Liberal Petitioner, no Solicitor General (party or amicus), no state government, Mean justice on the Court (.528), neutral public opinion (.5), neutral Congress (0), and no experience advantage to either party. All predicted probabilities calculated using Clarify for Stata 7.
Figure 21: Predicted Percent Liberal Outcomes in Cases by Party of President.
156 As previously indicated a closer look at the individual presidents may shed light on any important distinctions between presidents, and provide further checks on the robustness of the Office of the Solicitor General influence. The 9 presidents from 1953 through 1999 were separated and analysis of the cases decided during each of their tenures (based on dates of oral argument, not final decision date) was conducted to determine whether the influence of the Office of the Solicitor General held constant for each president. The results are reported in chronological order beginning with the earliest president in the study (Eisenhower) and ending with the president in 1999
(Clinton) in Figure 22.
As with almost every other model, the position espoused by the petitioner is the most statistically significant variable. However, the ideology of the Court does not appear as significant in 8 of the 9 presidential eras. Only the Nixon era finds the Court ideology as significant. Why the Court’s ideology is less significant in the presidential breakdown eras than for every other breakdown thus far is somewhat of a mystery. One possibility is that the presidential periods do not allow enough time for the median justice on the Court to shift, especially for eras like the Carter years where there was no shift in
Court ideology at all (the only variance in the Court ideology during the Carter period is due to Court members not participating in individual cases themselves). Similar limitations are present in many of the presidential eras. Even where there have been replacements, they do not often dramatically shift the Court’s median ideology, that only occurs over an extended time frame.
157 Variables Eisenhower Kennedy Johnson Nixon Court 1.70 2.52 -4.14 4.25** Ideology (1.60) (1.77) (3.02) (1.69) Liberal .341*** .612*** .935*** .737*** Petitioner (.108) (.202) (.140) (.107) Liberal .531*** .516* .560*** .486*** SG (.140) (.269) (.181) (.171) Conservative -.267** -.280 -.206 -.385** SG (.123) (.229) (.174) (.158) Liberal .280 -.098 .266 -.175 State Govt (.198) (.342) (.294) (.211) Conservative -.151 .076 .229 -.095 State Govt (.141) (.214) (.152) (.132) Congress -5.47* .023 3.41** -4.91 Ideology (2.92) (1.27) (1.65) (3.31) Public Opinion -.008 .008 .072** -.030 Ideology (.012) (.043) (.037) (.040) Attorney Exp. -.001 -.005 .010** .001 Advantage (.004) (.008) (.005) (.003) Liberal SG 1.23** .250 .249 .399* Amicus (.497) (.305) (.239) (206) Conservative -.023 ------1.01** -.227 SG Amicus (.368) ------(.422) (.226) Constant -1.05 -1.75 -2.32 -.634 (.962) (2.38) (2.82) (2.20) n=793 n=306 n=576 n=701 chi2=.000 chi2=.000 chi2=.000 chi2=.000
Figure 22: Models of Liberal Votes as Determined by Potential Outside Influences with Office of the Solicitor General Ideology Varying by President, 1953-1999.
Figure 22 continued on next page
158 Figure 22 continued
Variables Ford Carter Reagan Bush Clinton Court 8.99 14.27 .943 -1.26 3.25 Ideology (13.37) (10.03) (2.90) (3.20) (4.71) Liberal .754*** .610*** .433*** .461*** .477*** Petitioner (.148) (.118) (.080) (.130) (.108) Liberal .528** .261 .290** .303 .363** SG (.247) (.177) (.132) (.214) (.182) Conservative -.319 -.524*** -.713*** -.670*** -.257* SG (.217) (.177) (.119) (.191) (.150) Liberal .523* .408* -.007 -.080 -.306 State Govt (.273) (.224) (.141) (.265) (.204) Conservative .007 -.137 -.054 -260* -.097 State Govt (.184) (.138) (.094) (.151) (.131) Congress -5.12* 4.02 .455 2.74 .227 Ideology (3.07) (3.38) (1.30) (5.55) (.640) Public Opinion .081 .059 .004 -.053 -.026 Ideology (.097) (.083) (.016) (.101) (.037) Attorney Exp. .013* .012*** .010*** .003 .0004 Advantage (.007) (.004) (.003) (.003) (.002) Liberal .311 .328* .391*** .584*** .599*** SG Amicus (.250) (.199) (.140) (.213) (.152) Conservative -.684** -.512* -.599*** -.865*** -.248 SG Amicus (.296) (.275) (.125) (.185) (.169) Constant -9.50 -11.13 -.853 3.74 -.144 (9.75) (7.41) (1.58) (6.92) (3.01) n=345 n=525 n=1154 n=452 n=614 chi2=.000 chi2=.000 chi2=.000 chi2=.000 chi2=.000
Figure 22 (continued): Models of Liberal Votes as Determined by Potential Outside Influences with Office of the Solicitor General Ideology Varying by President, 1953-1999.
159 The findings on the influence of the Office of the Solicitor General are another matter. For all nine presidential eras the Office of the Solicitor General exerts some influence on the Court’s decisions in either the liberal or conservative direction, and four of the presidential eras show influence by the Office of the Solicitor General in both directions. Even where the results show influence in only one ideological direction, it is not always in the direction of the president’s ideology as the Ford and Carter eras show influence in the direction opposite of the president’s ideology. The coefficients are in the expected direction for all presidents with liberal requests resulting in more liberal outcomes, and conservative requests resulting in more conservative outcomes. The results for the influence of the Office of the Solicitor General as amicus are somewhat surprising. The influence of the Office as amicus did not solidify in a consistent manner until the Reagan era. Prior to that point it was somewhat inconsistent and often provides evidence of more direct influence as under Eisenhower, Johnson and Nixon the influence occurred in the opposite direction from the president’s ideology.
The most consistently significant variable other than petitioner and Office of the
Solicitor General ideology is the experience of the attorneys. Four of the nine presidential eras revealed some influence of the attorney experience advantage, with all four resulting in a significantly greater chance of a liberal outcome when the liberal side has the experience advantage. Finally, there is some significance for other variables including: Congress for Johnson with Eisenhower and Ford bordering on significance; liberal state government requests bordering on significance for Ford and Carter; and conservative state government requests bordering on significance for Bush. These other actors influence the Court on occasion, but it is not the norm. 160 In order to focus my attention on the Office of the Solicitor General, I am going to report in Figure 23 the results of the predicted probabilities on the presidents for only the six variables which have been most consistently significant through-out all previous analyses: Court ideology, Petitioner ideology, and the Office of the Solicitor General ideology variables (party and amicus). The results reveal that by and large, the Office of the Solicitor General’s ideology moving from liberal to conservative or vice versa, has a strong substantive impact on the Court always matching or exceeding the impact of the ideology of the petitioner.21 In fact if only the statistically significant variables are considered for the Office of the Solicitor General and comparing to the petitioner’s position, the Office of the Solicitor General’s influence in only one direction is almost always comparable to the impact of the ideology of the petitioner, usually slightly less, but within 1 to 2 percentage points.
The overall influence of the Office of the Solicitor General for the four presidential periods where the Office of the Solicitor General ideology was statistically significant in both directions ranges from approximately 9% to 27% difference in the likelihood of a liberal outcome. These four presidential periods also contain the most observations. The remaining five presidential periods are only statistically significant in one direction, but are also lighter in observations. These five periods show that the Office of the Solicitor General appears to be less influential during some time periods.
However, as noted above
21It should be noted that only Eisenhower, Nixon, Reagan and Clinton revealed statistical significance on both the liberal and conservative Office of the Solicitor General. 161 Independent Variable Eisenhower Kennedy Johnson Values % % Diff % % Diff % % Diff
Baseline Prediction* 55.2 60.9 55.9 Conservative Petitioner 45.3 -9.9 52.2 -8.7 53.2 -2.7 Most Liberal Justice 65.4 +10.2 64.8 +3.9 54.9 -1.0 Most Conservative Justice 41.7 -13.5 48.7 -12.2 66.9 +11.0 Liberal Solicitor General 69.9 +14.7 68.4 +7.5 58.4 +2.5 Conservative Solicitor General 47.2 -8.0 58.4 -2.5 55.2 -.7 Liberal SG Amicus 84.3 +19.1 64.5 +3.6 57.0 +1.1 Conservative SG Amicus 55.1 -.1 ------53.0 -2.9
Independent Variable Nixon Ford Carter Values % % Diff % % Diff % % Diff
Baseline Prediction* 83.0 43.2 44.2 Conservative Petitioner 74.7 -8.3 39.1 -4.1 40.0 -4.2 Most Liberal Justice 90.3 +7.3 59.3 +16.1 77.1 +32.9 Most Conservative Justice 72.3 -10.7 39.4 -3.8 32.6 -11.6 Liberal Solicitor General 87.4 +4.4 46.0 +3.2 46.1 +1.9 Conservative Solicitor General 78.7 -4.3 41.4 -1.8 40.5 -3.7 Liberal SG Amicus 86.5 +3.5 44.8 +1.7 46.5 +2.3 Conservative SG Amicus 80.3 -2.7 39.5 -3.7 40.5 -3.7
Independent Variable Reagan Bush Clinton Values % % Diff % % Diff % % Diff
Baseline Prediction* 50.3 72.2 75.1 Conservative Petitioner 38.4 -11.9 69.7 -3.5 68.9 -6.6 Most Liberal Justice 57.7 +7.4 71.2 -1.0 82.9 +7.8 Most Conservative Justice 45.2 -5.1 72.3 +.1 69.7 -5.4 Liberal Solicitor General 58.6 +8.3 73.9 +1.7 79.3 +4.2 Conservative Solicitor General 31.0 -19.3 68.5 -3.7 71.7 -3.4 Liberal SG Amicus 61.5 +11.2 75.2 +3.0 81.9 +6.8 Conservative SG Amicus 33.8 -16.5 67.4 -4.8 72.1 -3.0
* Baseline Prediction based on Liberal Petitioner, no Solicitor General, no state government, Mean justice on the Court (.528), neutral public opinion (.5), neutral Congress (0), and no experience advantage to either party. All predicted probabilities calculated using Clarify for Stata 7. Bold indicates statistically significant variables.
Figure 23: Predicted Probabilities of Liberal Outcome in Cases with Various Values of the Independent Variables by Presidential Tenure.
162 the effect is still comparable to the petitioner ideology suggesting that in relative terms the impact may still be substantial.
Only one presidential era, Nixon, revealed statistical significance for the Court’s ideology. As a result of the lack of statistical significance, the predictions for the Court ideology should be viewed with caution. These results seem to indicate that the Court ideology has a large effect on the Court’s decisions, always exceeding the impact of the
Office of the Solicitor General. As in previous analyses, this is in part because of the extremes used for the Court ideology, as the predictions are calculated at the most liberal and most conservative justice on the Court not at more realistic justice ideologies. So if the Court were full of Clarence Thomases then the expected impact of a conservative
Court ideology could be as indicated in the conservative direction. So the 18% impact of
Court ideology during the Nixon era compared to the 9% impact of the Office of the
Solicitor General using the extremes of ideology on the Court is adjusted to 8% for the
Court’s ideology if more accurate .625 for a liberal Court and .425 for a conservative
Court (median is .528) figures are used instead. This indicates that even for the one presidential period where the Office of the Solicitor General, petitioner ideology and
Court ideology variables are significant, the magnitude of the substantive effect for each is almost exactly the same.
The final way I have chosen to view the political variance is by evaluating the
Office of the Solicitor General during the different Solicitor General tenures. There were
12 Solicitors General and one acting Solicitor General from 1953 to 1999. Their tenures do not exactly match the tenures of the presidents as some presidents often retained the old Solicitor General for some portion of their time in office, as for instance occurred 163 with Erwin Griswold appointed by Johnson, but not being replaced until June of 1973 under Nixon, and Robert Bork appointed by Nixon and never being replaced by Ford so that there is no Ford appointed Solicitor General. The tenures of Sobeloff, Marshall and the acting Dellinger are short enough (2 terms or less) that their results are relatively weak compared to many of the other Solicitor General periods.
Figure 24 provides the results of these analyses. As usual the ideology of the petitioner is the most consistently significant factor in determining case outcomes.
Further as with presidential eras, the Court ideology variable is rarely significant (only
Sobeloff, Griswold and Bork). Griswold and Bork were Solicitors General during the
Nixon years reaffirming the findings on the impact of Court ideology during the Nixon era. Once again beyond the Solicitor General, and the petitioner’s ideology there are only smatterings of significant variables with the most common being the attorney experience advantage.
164 Variables Sobeloff Rankin Cox Marshall Court -21.99** 1.26 .500 -4.70 Ideology (9.92) (1.88) (1.24) (4.50) Liberal -.128 .526*** .773*** .833*** Petitioner (.195) (.135) (.150) (.240) Liberal .500** .598*** .367* .505* SG (.247) (.175) (.193) (.307) Conservative -.256 -.264* -.475** .147 SG (.212) (.157) (.177) (.284) Liberal -.110 .500** -.124 .424 State Govt (.338) (.252) (.273) (.541) Conservative .026 -.145 .037 .526** State Govt (.257) (.175) (.163) (.254) Congress -.046 -4.48 1.21 ----- Ideology (5.28) (4.93) (1.03) ----- Public Opinion .210*** -.025 .048 .049 Ideology (.066) (.030) (.036) (.130) Attorney Exp. .010 -.003 .005 .019** Advantage (.008) (.005) (.005) (.009) Liberal ------.990* .118 .074 SG Amicus ------(.560) (.232) (.414) Conservative -.405 .151 -1.62*** -.937 SG Amicus (.642) (.457) (.601) (.679) Constant 1.02 .237 -3.60* -.290 (4.41) (2.45) (2.10) (9.16) n=253 n=520 n=514 n=203 chi2=.007 chi2=.000 chi2=.000 chi2=.000
Figure 24: Models of Liberal Votes as Determined by Potential Outside Influences Varying by Solicitor General, 1953-1999.
Figure 24 continued on next page
165 Figure 24 continued
Variables Griswold Bork McCree Lee Fried Court 3.81** 20.62* .778 .047 1.84 Ideology (1.89) (11.72) (7.84) (4.20) (5.19) Liberal .815*** .756*** .725*** .673*** .170 Petitioner (.110) (.122) (.114) (.119) (.119) Liberal .701*** .419** .254 .310* .243 SG (.170) (.206) (.170) (.186) (.204) Conservative -.278* -.342* -.604*** -.857*** -.585*** SG (.157) (.182) (.177) (.174) (.176) Liberal -.028 .466** .255 -.171 .072 State Govt (.215) (.227) (.221) (.206) (.214) Conservative -.133 .141 -.197 .018 -.090 State Govt (.130) (.153) (1.32) (.137) (.140) Congress -1.83 -3.99 5.37 3.00 -57.15 Ideology (3.47) (2.99) (3.24) (2.11) (35.89) Public Opinion -.024 .017 .074 .049 -.246 Ideology (.046) (.077) (.070) (.044) (.155) Attorney Exp. -.002 .017*** .009** .006* .015*** Advantage (.003) (.006) (.004) (.004) (.004) Liberal .524** .222 .453** .657*** -.029 SG Amicus (.209) (.219) (.188) (.200) (.225) Conservative -.096 -.833*** -.523** -.683*** -.502*** SG Amicus (.242) (.260) (.255) (.197) (.172) Constant -1.03 -11.61 -5.45 -3.18 16.74 (2.40) (8.28) (6.07) (3.00) (12.07) n=740 n=498 n=573 n=573 n=520 chi2=.000 chi2=.000 chi2=.000 chi2=.000 chi2=.000
Figure 24 (continued): Models of Liberal Votes as Determined by Potential Outside Influences Varying by Solicitor General, 1953-1999.
Figure 24 continued on next page
166 Figure 24 continued
Variables Starr Days Dellinger Waxman Court -1.26 3.26 -32.42 14.70 Ideology (3.20) (11.09) (31.83) (10.63) Liberal .461*** .364** .886*** .475*** Petitioner (.130) (.162) (.331) (.176) Liberal .303 .369 .188 .476 SG (.214) (.264) (.431) (.327) Conservative -.670*** -.251 -1.35** .029 SG (.191) (.214) (.545) (.253) Liberal -.080 -.595* .421 -.323 State Govt (.265) (.322) (.544) (.333) Conservative -.260* .102 -.980*** -.040 State Govt (.150) (.196) (.356) (.217) Congress 2.74 -12.89 ------3.51 Ideology (5.55) (16.24) ------(9.42) Public Opinion -.053 -.133 ------.311 Ideology (.101) (.134) ------(.673) Attorney Exp. .003 -.001 -.001 .002 Advantage (.003) (.003) (.007) (.004) Liberal .584*** .543** .498 .865*** SG Amicus (2.13) (.228) (.821) (.234) Conservative -.865*** -.434* ------.081 SG Amicus (.185) (.242) ------(.258) Constant 3.74 8.88 13.24 11.65 (6.92) (11.92) (13.26) (42.11) n=452 n=289 n=82 n=243 chi2=.000 chi2=.002 chi2=.002 chi2=.000
Figure 24 (continued): Models of Liberal Votes as Determined by Potential Outside Influences Varying by Solicitor General, 1953-1999.
167 As for the Solicitor General ideology, 5 of the 12 justices reveal statistical significance for the Solicitor General’s ideology in both the conservative and liberal directions. Except for the Drew Days and Seth Waxman eras, the Solicitor General ideology is significant for every era. There does appear to be one important note to be made here about the significances. Four of the five eras where the Solicitor General influence occurs in both the liberal and conservative directions occurred prior to 1977.
Only the Charles Fried era from 1985-1989 reveals significance for both directions of the Solicitor General ideology after that. Lincoln Caplan (1987) argues that the Lee and
Fried eras of the Court were so politically charged that the Solicitors’ General were not acting as the guardians of good law and thus damaged the reputation of the Solicitor
General before the Court. The results here potentially support such a claim as since Fried only 2 of the 4 Solicitors General eras show any influence. The only two eras without any significance at all for the Solicitor General occur during this period. A note of caution should be added here, there has been too little time since the Reagan Solicitors
General were in office to be able to tell for sure whether the trust between or deference to the Solicitor General has been eroded by the supposedly over-political actions of two
Solicitors General. Further, the nature of the political circumstances since then have been such that more research is necessary before any conclusions can be made. With 3 of the 4
Solicitors General since Fried being appointed by a Democrat president and a strongly conservative Supreme Court this may be an artifact of the role of the ideology of the
Court rather than an overall eroding of trust as Caplan would claim. Adding the
Republican appointed Theodore Olson in the future may clarify the picture.
168 As with the presidential eras, the influence of the Office of the Solicitor General as amicus curiae has increased over time. Prior to the late 1960s with Griswold, the ideological direction of the Office of the Solicitor General’s briefs were not significant.
Since that time, the amicus variables have been significant for almost every Solicitor
General era. The repetition of this trend in two separate analyses suggests that the justices are paying more attention to amicus brief requests, at least by the federal government.
The statistical significances only tell part of the story. The results for the individual Solicitor General eras is very similar to the results for the presidential eras.
The importance of the figures is less open to easy interpretation because of the smaller numbers of cases for each period. Three of the five periods where the Solicitor General influence occurred in both directions have an impact of between 9 and 13%, a fourth is at
6%. The final period for Fried is only at 1%. In comparative terms within each period it is possible to see that the Solicitor General influence generally, though not for every case, has a similar impact to that of the Court’s ideology and the petitioner’s ideology. The
Bork period does seem to be a period where the Court’s ideology was so powerful that everything else appears to be irrelevant. But this is the exception rather than the norm.
The influence of the Solicitor General as amicus is very similar to the Office as party significances. However, the role as amicus tends to produce slightly greater impacts in the 1980s and 1990s, and is relatively non-existent during the 1950s through 1970s.
169 Independent Variable Sobeloff Rankin Cox Values % % Diff % % Diff % % Diff Baseline Prediction* 56.3 70.5 57.4 Conservative Petitioner 56.3 0.00 63.0 -7.5 51.3 -6.1 Most Liberal Justice 56.2 -.1 73.6 +3.1 58.7 +1.3 Most Conservative Justice 56.4 +.1 65.5 -5.0 54.2 -3.2 Liberal Solicitor General 56.3 0.00 78.0 +7.5 61.3 +3.9 Conservative Solicitor General 56.3 0.00 66.8 -3.7 53.4 -4.0 Liberal SG Amicus ------81.9 +11.4 58.8 +1.4 Conservative SG Amicus 56.3 0.00 72.7 +2.2 47.0 -10.4
Independent Variable Marshall Griswold Bork Values % % Diff % % Diff % % Diff Baseline Prediction* 37.6 74.7 45.1 Conservative Petitioner 33.5 -4.1 65.1 -9.6 38.7 -6.4 Most Liberal Justice 34.7 -2.9 81.3 +6.7 87.5 +42.4 Most Conservative Justice 46.7 +8.9 62.9 -11.8 21.3 -23.8 Liberal Solicitor General 39.9 +2.3 81.6 +6.9 48.8 +3.7 Conservative Solicitor General 38.3 +.7 71.6 -3.1 42.2 -2.9 Liberal SG Amicus 37.8 +.2 79.9 +5.2 46.8 +1.7 Conservative SG Amicus 33.1 -4.5 73.7 -1.0 38.4 -6.7
Independent Variable McCree Lee Fried Values % % Diff % % Diff % % Diff Baseline Prediction* 57.3 58.6 44.5 Conservative Petitioner 53.4 -3.9 52.6 -6.0 44.3 -.2 Most Liberal Justice 61.2 +3.9 62.9 +4.3 46.1 +1.6 Most Conservative Justice 58.9 +1.6 58.3 -.3 43.2 -1.3 Liberal Solicitor General 58.8 +1.5 61.9 +3.3 44.8 +.3 Conservative Solicitor General 53.9 -3.4 51.2 -7.4 43.8 -.7 Liberal SG Amicus 60.0 +2.7 65.7 +7.1 44.4 -.1 Conservative SG Amicus 54.3 -3.0 52.6 -6.0 43.9 -.6
Independent Variable Starr Days Waxman Values % % Diff % % Diff % % Diff Baseline Prediction* 73.5 82.9 63.8 Conservative Petitioner 71.1 -2.4 81.9 -1.0 63.4 -.4 Most Liberal Justice 72.1 -1.4 84.2 +1.3 69.0 +5.2 Most Conservative Justice 73.8 +.3 81.4 -1.5 62.0 -1.8 Liberal Solicitor General 75.1 +1.6 83.8 +.9 64.2 +.4 Conservative Solicitor General 69.7 -3.8 82.2 -.7 63.9 +.1 Liberal SG Amicus 76.2 +2.7 84.1 +1.2 64.6 +.8 Conservative SG Amicus 68.7 -4.8 81.6 -1.3 63.8 0.00
* Baseline Prediction based on Liberal Petitioner, no Solicitor General, no state government, Mean justice on the Court (.528), neutral public opinion (.5), neutral Congress (0), and no experience advantage to either party. All predicted probabilities calculated using Clarify for Stata 7. Walter Dellinger is missing because he had too few cases for Clarify to calculate predictions. Bold indicates statistically significant variables.
Figure 25: Predicted Probabilities of Liberal Outcome in Cases with Various Values of the Independent Variables by Solicitor General.
170 The political variance models generally support the idea that the Office of the
Solicitor General exerts some influence over the Court’s decisions across time, and for changing political circumstances. This influence varies during different periods, and only in a couple of periods (for Solicitor General periods during the 1990's) disappears altogether. The influence is on a par with the petitioner ideology and can be as great or even greater than the impact of the Court’s own ideology. The Court variance models and the political variance models taken together tend to support the idea that the influence of the Office of the Solicitor General is robust across the entire 1953 to 1999 period under most circumstances. Somewhat surprisingly, the Office of the Solicitor General influence as amicus curiae appears to have greatly increased over the length of this study.
In recent years the Court seems to give more weight to the Office’s position. There are other non-time based ways to analyze the influence of the Office of the Solicitor General.
Some of these Case based approaches are explored in the next section of this Chapter.
C. CASE VARIANCE MODELS
The case variance models in this section attempt to assess the potential influence of the Office of the Solicitor General under different case fact based situations. These include the different roles played by the Office of the Solicitor General, whether discretionary as a petitioner, or involuntary as a respondent; the different bases for the
Court’s decision, whether constitutional or statutory; one specific issue based analysis, whether the case involves foreign policy or domestic policy issues; and the different broad categories of issues, whether criminal, due process, economic, civil rights, etc. I 171 will begin with the different roles played by the Office and end with the broad issue categories.
The different roles played by the Office of the Solicitor General as a party are as petitioner and respondent. The Office of the Solicitor General has almost complete discretion to choose when they will be a petitioner in a case, but absolutely no power to control when they will be a respondent (except with the ability to settle a case out of court which is unlikely at this stage since the government has already won the case once on a appeal). The influence of the Office may vary depending on the role of the Office of the Solicitor General. Hypothetically, the influence of the Office might be stronger as a petitioner, because they are able to pick good cases, whether ideologically congruent with the Court’s position, or simply because the case facts or legal situation (i.e. conflict in the circuits, dissent on the court of appeals) are such that there is a good chance the Office will win, or can have some influence. Respondent side cases present less opportunity for control by the Office, therefore, they are less likely to result in influence. A cautionary note concerning the findings with respect to the Office’s role as respondent, one inherent problem with the Office of the Solicitor General as respondent is the strong inclination of the Court to take cases they intend to reverse giving the advantage to the petitioners. This may have the unintended effect of washing out any influence in the model. It is obvious from the simple numbers concerning success as a respondent in Chapter 2 that the Office is extremely successful even as a respondent. A control in the full Office of the Solicitor
General only model for respondent is included to test this potential difference.
172 Variables SG as Petitioner SG as Respondent Court Ideology 1.34* 2.22*** (.703) (.547) Liberal Petitioner -.344 .572 (.707) (.626) Liberal SG .147 .282 (.474) (.467) Conservative SG -1.47*** -.479 (.537) (.432) Liberal State Govt .012 -.251 (.382) (.463) Conservative State Govt .046 -.243 (.258) (.240) Congress Ideology -1.05* -.914** (.594) (.463) Public Opinion Ideology .020 -.007 (.012) (.011) Attorney Experience .087*** -.054*** Advantage (.006) (.004) Constant -1.03 -.845 (.890) (.766) n= 1090 950 Likelihood Ratio= 809.88 315.67 Prob> chi2= .0000 .0000
*** p> .001; ** p> .05; * p> .1
Figure 26: Models of Influence on Liberal Outcomes by Party Position of the Office of the Solicitor General.
173 The models in Figure 26 include only cases in which the Office of the Solicitor
General was either a petitioner or respondent and no other cases. The models for the
Office of the Solicitor General as petitioner and as respondent suggest that a large portion of the influence of the Office of the Solicitor General could potentially be found in the congruence with the ideological position of the Court, and the experience advantage of the attorneys as suggested by McGuire. The Office of the Solicitor General as petitioner model suggests that the Court ideology is somewhat significant as is the Congress ideology, but that the primary significance in determining case outcome is through the attorney experience and the conservative ideological positions espoused by the Office of the Solicitor General. No other factors even approach significance. When the Office of the Solicitor General is acting as the Respondent, the Congress ideology approaches significance, but the only two factors that are significant are the Court’s ideology and the experience of the attorneys.
These findings suggest that the influence of the Office of the Solicitor General is derived in large part due to the congruence with the Court’s ideology and the experience of the attorneys. Here, the only comparison occurs with the Office of the Solicitor
General’s opponent in the case. A further fleshing out of this issue may be possible in evaluations of all cases involving the Office of the Solicitor General, so that the role of the Office as amicus can be considered which is not possible here.
When I assess the predicted percent liberal outcomes based on the different roles of the Office of the Solicitor General (Figure 27), a number of things stick out. First, for both petitioner and respondent models, the experience advantage of the attorneys comes through glaringly as the most significant variable. At the extremes, the experience 174 advantage results in either 100% or 0% likelihood of a liberal outcome depending on whether the liberal side or the conservative side holds the experience advantage. This suggests that there might be an added effect for the Office of the Solicitor General’s experience advantage, something that was not supported in previous models in Chapter 4.
This effect may be destroying any impact the Office of the Solicitor General and the ideology of the petitioner have in the models. This finding also suggests the possibility that the model is capturing something about who is challenging the government, whether former Office of the Solicitor General attorneys, or simply highly experienced attorneys who know how to pick cases that are good challenges to the government’s position.
When I assess the impact of the Office of the Solicitor General in the petitioner model, it becomes obvious that the Office of the Solicitor General has a rather large substantive impact (25%) on the outcome when they espouse the conservative position, but that the liberal side does not enjoy such an advantage. In the respondent world, neither position by the Office of the Solicitor General reached significance, yet they have a substantial impact on outcomes, though whether the impact can be trusted is the real question given the lack of significance. The impact is once again of similar magnitude to the impact of the petitioner’s ideology, and the Court’s ideology.
These models suggest, and further research is necessary to confirm, that the
Office of the Solicitor General exerts more direct influence on the Court’s decisions when they are acting as a petitioner rather than as a respondent, this may reflect deference to the Office of the Solicitor General because of the perceived importance to the government of the case as they are seen as carefully selecting only the most
175 Petitioner Respondent Independent Variable Predicted Liberal Percent Predicted Liberal Percent Values Percent Difference Percent Difference
Baseline Prediction* 32.01% 76.92%
Conservative Petitioner 42.13% +10.12% 59.99% -16.93% Most Liberal Median Justice (.814) 43.10% +10.09% 88.01% +8.91% Most Conservative Median Justice (.296) 23.62% -8.39% 62.49% -14.43% Liberal Solicitor General 35.17% +3.16% 81.43% +4.51% Conservative Solicitor General 7.14% -24.87% 63.66% -13.26% Liberal State Government 32.90% +.99% 68.94% -7.98% Conservative State Government 33.44% +1.43% 71.22% -5.70% Liberal Public Opinion 32.13% +.12% 76.91% +.01% Conservative Public Opinion 31.91% -.10% 76.94% +.02% Most Liberal Congress 27.12% -4.89% 72.64% -4.31% Most Conservative Congress 35.66% +3.65% 79.59% +2.67% Difference in Experience Max Liberal Advantage 100% +67.99% 0.00% -76.92% Average SG Liberal Advantage 74.10% +42.09% 50.69% -26.23% 1 Case Liberal Advantage 34.40% +2.39% 75.62% -1.30% 1 Case Conservative Advantage 29.71% -2.30% 78.18% +1.26% Average SG Conservative Advantage 8.35% -23.66% 90.70% +14.78% Max Conservative Advantage 0.00% –32.01% 100% +23.08%
* Baseline Prediction based on Liberal Petitioner, no Solicitor General, no state government, Mean justice on the Court (.528), neutral public opinion (.5), neutral Congress (0), and no experience advantage to either party. All predicted probabilities calculated using Clarify for Stata 7.
Figure 27 : Predicted Percent Liberal Outcomes in Cases by Party Position of the Office of the Solicitor General.
176 important issues for the government’s operation to pursue at the Supreme Court level.
Future research is necessary to parse out the true meaning of these findings, especially if the findings are supported by the influence factor models in the next chapter.
Another approach to understand the potential influence of the Office of the
Solicitor General is to assess the basis of the law behind the Court’s decisions as separate models. Therefore, whether the case is constitutional or statutory and whether the case is foreign or domestic policy will be evaluated. It is hypothesized that the Court will be more deferential, and therefore the Office of the Solicitor General will be more influential on statutory rather than constitutional cases as the Court sees the Constitution as its specific domain and statutory law is implemented by the executive and therefore more deference would occur. The results from Figures 28 and 29 appear to at least in part support this hypothesis. The petitioner’s ideology, Court ideology and experience of the attorneys are significant for both situations. However, the Office of the Solicitor
General ideology is only significant in the conservative direction for constitutional law cases, whereas it is significant in both directions for statutory cases. It appears, from the statistics at least, that the Office of the Solicitor General exerts less influence in constitutional cases than in statutory, although the Office is somewhat influential regardless of the type of case. As has been the case in most previous models, the Office as amicus variables track the Office as party variables. Both liberal and conservative amicus briefs are significant in the statutory world, while the conservative position is significant and the liberal position only borders on significance in the constitutional world.
177 Variables Domestic Foreign Statutory Constitutional Court Ideology 1.77*** 3.99*** 1.82*** 1.93*** (.225) (.977) (.262) (.400) Liberal Petitioner .580*** .335** .571*** .569*** (.038) (.149) (.045) (.066) Liberal SG .423*** -.418 .423*** .159 (.059) (.357) (.063) (.167) Conservative SG -.471*** -.261 -.387*** -.518*** (.055) (.212) (.060) (.112) Liberal State Govt .055 .272 .021 .222* (.072) (.400) (.096) (.117) Conservative State -.091** .114 -.112** .072 Govt (.046) (.214) (.057) (.090) Congress Ideology -.320 -.936 -.538** .125 (.203) (.763) (.234) (.369) Public Opinion .003 -.025 .002 -.001 Ideology (.004) (.017) (.005) (.007) Attorney Experience .005*** .004 .004*** .004*** Advantage (.001) (.004) (.001) (.002) Liberal SG Amicus .463*** .245 .483*** .270* (.070) (.232) (.075) (.149) Conservative SG -.523*** -.402 -.492*** -.566*** Amicus (.072) (.401) (.093) (.110) Constant -1.31*** -.673 -1.26*** -1.33*** (.245) (.963) (.287) (.428) n=5122 n=344 n=3636 n=1830 Prob>chi2= .000 .000 .000 .000
Figure 28: Influence of Independent Actors on the Outcome of Cases Controlling for the Ideological Preferences of the Justices by Type of Case, 1953-1999.
178 The predicted percent of liberal outcomes in Figure 29 add substance to this statistical finding. Where the predictions in each model for petitioner ideology and Court ideology hold relatively steady for the two types of cases, the predictions for the Office of the Solicitor General’s impact is almost 4% greater in statutory cases than in constitutional cases, though it is quite substantial in both exceeding 24% in each model.
Another interesting point to make about the findings for the statutory versus constitutional cases is that, in both situations the experience of the attorneys is highly relevant for case outcomes, although not as extreme as in some previous models.
One specific individual issue area, foreign policy versus domestic policy, makes some initial hypothetical sense for evaluation. Foreign policy powers are expressly designated in Article II of the Constitution to the executive branch. Because of this delegation it is possible to hypothesize that where issues relating to foreign policy reach the Supreme Court, the Court would be more deferential to the position espoused by the
Office of the Solicitor General as the representative of the executive branch than for cases without a foreign policy issue. This deference should manifest itself in a significant Office of the Solicitor General ideology and a large substantive significance on the predicted probabilities.
Foreign policy issues encompass all issues related to the treatment by the Court of treaties, military actions and regulations, diplomatic relations between countries, and immigration regulations. There were only 344 foreign policy cases out of the 5466 cases between 1953 and 1999. As the results in Figure 28 reveal, there is no special deference to the Office of the Solicitor General for foreign policy issues compared to domestic policy issues. In fact, the Office of the Solicitor General ideology variables are not 179 significant in the model of foreign policy cases, but are significant for domestic policy; and the sign on the variable for a liberal Office position is in the wrong direction. The only factors that are relevant in foreign policy cases are the usual suspects of Court ideology and petitioner ideology. These results should be viewed with some caution, however. The relatively low number of foreign policy cases over a 47 year period means that on average the Court only addressed about 8 foreign policy cases per term. Further, many military and treaty oriented issues never reach decision on the merits because the
Court claims a lack of jurisdiction on political question grounds or standing grounds, so that primarily those foreign policy cases that raise a constitutional issue reach the Court creating a conflict between the jurisdictional mandate of the Court and any potential deference to the executive branch. Another potential reason for the limited cases and findings is that the deference to the government may come at the case selection stage as the Court generally refuses to hear “political questions” which often include foreign policy issues.
Once again the predicted percent liberal findings in Figure 29 indicate that the
Office of the Solicitor General does not exert the kind of influence expected on foreign policy cases. Even were the Office of the Solicitor General ideology variables are significant in foreign policy cases, they result in a relatively weak four to seven percent impact on the case outcomes. And the impact of a liberal request by the Office of the
Solicitor General actually results in a greater likelihood of a conservative outcome, even more so than a conservative request by the Office.
In fact, the only factor coming close to matching the substantive impact seen in domestic policy cases is the Court’s ideology. On this factor, even though it appears that 180 a liberal Court has less influence than a conservative one, the high baseline truncates the liberal side effect as it approaches 100%, resulting in the appearance of less impact on the liberal side.22 In the end the effect of the Court median justice ideology is the single largest and most important factor for foreign policy cases, while in domestic policy cases, the petitioner’s ideology has a much greater substantive impact, and the Office of the
Solicitor General’s ideology also has an impact on the Court’s decisions. The hypothesis that the Court will defer to the Office of the Solicitor General more in foreign policy cases than domestic policy cases does not appear to be supported for decisions on the merits.
Looking at this one issue area is important because of the hypothesized distinction between foreign and domestic policy treatment by the Court. However, it might also be instructive to separate the issue areas along the lines employed by other researchers of the
Court, and implemented as part of the Spaeth dataset. The issue areas are criminal law, civil rights, first amendment, due process, privacy, attorney issues, labor, economic issues, judicial powers, federalism, taxation, and miscellaneous cases.23 Each of these issue areas can be analyzed separately to determine whether the Office of the Solicitor
General exerts greater influence in one area than another. The miscellaneous category does not contain a discrete set of cases and therefore has been excluded from the analysis, it is also the case that the miscellaneous cases were all decided in a liberal direction and therefore there is no
22To test this I set the baseline at 50% with the result that the two directions became equivalent.
23A thirteenth issue area, interstate compacts, is included in the Spaeth dataset but is excluded for my purposes as there were no cases in the dataset that include interstate compact issues. 181 Independent Variable Domestic Foreign Statutory Constitutional Values % % Diff % % Diff % % Diff % % Diff Baseline Prediction* 57.6 89.6 60.9 58.8 Conservative 35.6 -22.0 84.9 -4.7 39.4 -21.5 38.3 -20.5 Petitioner Most Liberal 75.1 +17.5 97.1 +7.5 78.0 +17.1 76.5 +17.7 Justice Most Conservative 41.8 -15.8 72.2 -17.4 44.5 -16.4 43.0 -15.8 Justice Liberal 72.6 +15.0 83.2 -6.4 75.3 +14.4 64.5 +5.7 Solicitor General Conservative 39.5 -18.1 86.0 -3.6 46.3 -14.6 40.0 -18.8 Solicitor General Liberal State 59.7 +2.1 92.1 +2.5 61.8 +.9 66.5 +7.7 Government Conservative State 54.1 -3.5 91.2 +1.6 56.7 -4.2 61.3 +2.5 Government Liberal 57.6 0.00 89.6 0.00 61.0 -.1 58.8 0.00 Public Opinion Conservative 57.5 -.1 89.6 0.00 60.9 0.00 58.8 0.00 Public Opinion Most Liberal 55.2 -2.4 86.9 -2.7 57.2 -3.7 59.6 +.8 Congress Most Conservative 59.1 +1.5 91.1 +1.5 63.4 +2.5 58.2 -.6 Congress Max Liberal Adv. 79.5 +21.9 80.5 -9.1 80.3 +19.4 74.8 +16.0 Average SG Liberal Adv. 60.5 +2.9 88.8 -.8 63.6 +2.7 61.0 +2.2 1 Liberal Adv. 57.7 +.1 89.5 -.1 61.1 +.2 58.9 +.1 1 Conserv. Adv. 57.4 -.2 89.6 0.00 60.8 -.1 58.7 -.1 Average SG Conserv. Adv. 55.1 -2.4 90.1 +.5 58.7 -2.2 57.0 -1.8 Max Conserv. Adv. 32.5 -25.1 92.8 +3.2 37.9 -23.0 40.3 -18.5 Liberal SG Amicus 73.9 +16.3 92.1 +2.5 77.1 +16.2 67.8 +9.0 Conservative SG Amicus 37.8 -19.8 82.9 -6.7 42.4 -18.9 38.5 -20.3
* Baseline Prediction based on Liberal Petitioner, no Solicitor General, no state government, Mean justice on the Court (.528), neutral public opinion (.5), neutral Congress (0), and no experience advantage to either party. All predicted probabilities calculated using Clarify for Stata 7.
Figure 29: Predicted Probabilities of Liberal Outcome in Cases with Various Values of the Independent Variables, including First Differences and Prediction Ranges by Type of Case.
182 variation on the dependent variable for the miscellaneous cases. Two of the remaining issue areas have too few cases available to produce results that can be trusted (privacy
(58) and attorney issues(65)). As a result these two issue areas will not be discussed below.24
Finding differential influence by the Office of the Solicitor General across issue areas would tend to lend support to the idea that the Court defers to the Office because of the special expertise of the Office in certain issue areas. It is thus not surprising that of the 9 issue areas, only two, first amendment and federalism cases, find neither liberal or conservative Office of the Solicitor General ideology variables significant for party and amicus roles. Four of the issue areas, civil rights, labor, economic and judicial powers issues, find the Office of the Solicitor General influential in both a liberal and conservative direction as both a party and amicus. Of these, the judicial power issues are somewhat surprising as the Court might be expected to reserve this issue to their own control. However, as these decisions include such things as civil procedure, rules of evidence decisions, exhaustion of remedies, etc. that are very difficult for a complaining party to prove, and often go in favor the government as they tend to strictly follow the rules, this may not be as surprising as it first appears. Further research is necessary to determine how this sub-set breaks down concerning the side of the government and the specifics concerning the rulings to determine why there is influence where it is not expected. As for the other issue areas included here, civil rights has been strongly under the control of the executive since the civil rights acts and therefore, more deference to the
24Even with the small numbers for attorney issues cases, both a conservative position taken by the Office of the Solicitor General and the experience of the attorneys are significant in the expected direction, suggesting that the role of these two factors is quite strong. 183 government position might be expected, as is also the case with labor law and the control that the National Labor Relations Board exerts in the area. The final issue area here is economic issues which largely consists of antitrust, bankruptcy, patents and copyrights, and federal transportation and utilities regulations many of which are less charged politically, and more technical than the more straightforward constitutional issues and thus may result in deference because of the reliance on the more expert government with their technical knowledge, and with less likelihood of a clear opinion concerning preferences by the justices.
As for the two issue areas without any significant influence by the Office of the
Solicitor General, first Amendment cases and federalism, two completely separate explanations, drawn from my previous analyses can be employed. First Amendment cases are subject to the finding that constitutional issues result in less influence by the
Office of the Solicitor General than statutory issues as shown previously in this chapter.
Where previously there was some influence on constitutional issues in the conservative direction, on first amendment issues, the government tends to be the violating party and espousing the conservative position against a constitutional right. It is not completely surprising that the Court would be less willing to listen to a government when there is a denial of basic rights that the Court views as protected only through their actions.
Finally, for federalism cases, as hypothesized earlier there should be more deference to the states on federalism cases. The federalism cases involve primarily disputes between the states and the federal government. The Spaeth coding of this variable is such that where there is a dispute between a state and the federal government, the federal government position is the liberal position and the state government position is the 184 conservative position (against federal preemption, or for the expansion of rights). So if as hypothesized earlier there is some deference to the states, as was shown in the terms since the 1970s, then the conservative position of the state government should be significant and the position of the Office of the Solicitor General if it is overridden by the state interest, should not be significant. That is the result for the federalism cases.
Because of the nature of these issues, there were too few amicus cases in each to allow analysis of the amicus role of the Office. The Court appears to defer to the state governments when there is a dispute rather than the federal government.
One issue area of further interest is the federal taxation issue. Regardless of the position espoused by the federal government, the Court is influenced in the conservative direction. Without further breaking down this data to determine how the Office of the
Solicitor General participates, this result will not be able to be clearly understood. The
Office of the Solicitor General is primarily coded as espousing the liberal (against wealthy individuals and corporations) position for most of the cases, but it is unclear why a liberal position by the Office results in a conservative outcome. It appears from these results that when the Office of the Solicitor General does as expected on tax cases, takes a liberal position, the government loses, but when the government espouses the counter- intuitive position, the government wins.
The remaining two issue areas are criminal law and due process. In both of these areas the Office of the Solicitor General is influential only in the conservative direction.
These issues involve prisoners and federal defendants who are claiming some right against the government. It is somewhat surprising that the Office of the Solicitor General would be influential in the direction of the position they are most likely to espouse, the 185 conservative position, and not influential when they espouse the liberal position given the potential sources of influence of the Court. There are some possible explanations related to case facts and case selection. Criminal defendants have nothing to lose in appealing cases to the Supreme Court, and when the Court hears such a case on the merits, they may find it difficult to go against the administration of justice rhetoric of the government.
Without further research in the specific issue areas it is unclear exactly why these results are obtained, however, with the exception of the taxation issue area the results are not counter to reasonable explanations. The Office of the Solicitor General exerts some influence in seven of nine issue areas, and in the expected direction in all but one instance. The direction of the influence varies by issue area and can be at least in part explained by evaluating the types of cases in each area. Through these specific issue area analyses in addition to the analyses of foreign policy, constitutional law, and petitioner/respondent role of the Office of the Solicitor General it has been possible to explore the influence of the Office outside of the political contexts in sections A and B of this chapter. The results, although somewhat mixed, suggest that the Office of the
Solicitor General does not exert influence independent of Court ideology, attorney experience and petitioner ideology in the context of their different roles as petitioner and respondent. Further, the Office of the Solicitor General does not exert influence in the context of foreign policy issues, counter to expectations. The Office of the Solicitor
General does exert influence in all but two of the nine issue areas as coded in the Spaeth dataset, those areas being First Amendment issues and federalism issues. Finally, as expected, the Office of the Solicitor General exerts more influence in statutory cases than in constitutional cases. 186 D. OFFICE OF THE SOLICITOR GENERAL CASES
There is another way to approach the issue of the sources of the Office of the
Solicitor General’s influence. It is possible to look only at the Office of the Solicitor
General cases to see what sources of influence emerge as significant in that subset of
cases. In such an analysis it is useful to switch back to whether the Office of the Solicitor
General won or lost the case as the dependent variable and to employ only the sources of
influence variables with the standard controls from previous models to determine which
source best predicts the influence of the Office.
This approach analyzes only those cases where the Office of the Solicitor General
was either a party to the case or filed an amicus curiae brief to determine which of the
sources of influence has a statistically significant effect on the wins and loses. This
approach does require the reconceptualization of a number of variables, preventing the
new model from being completely consistent with the previous models that used
ideological outcomes as the dependent variable (See Figures 7 & 8) . Further as the
ideological variables mean nothing as they pertain to whether the Office of the Solicitor
General won or lost, they must be discarded in favor of new variables that assess not the
effect of ideology in its simplest formulation but rather the congruence of the Office’s ideology with the ideology of the other ideological actors in the process.
As a result the new model of sources of influence on whether the Office of the
Solicitor General wins or loses is as follows:
187 SG Wins=SG/Court Congruence + SG/Public Opinion Congruence + SG/Congress Congruence + SG/President Congruence + SG as Petitioner + SG Experience Advantage + SG Opposed by State Government + Statutory Case + Foreign Policy Case + Number of Cases Filed by SG as Party in Previous Year + Number of Cases Filed by SG as AC in Previous Year + SG Invited to File AC
This model incorporates as many hypotheses from Chapter 3 into the model to test the sources of influence. This is a continuation and aggregation of the themes present in the previous models in this chapter. Figure 8 explains the hypothesis being tested for each variable. The advantage of this model over the previous models is the lack of cluttering external elements. Since models in chapters 4 and earlier in chapter 5 revealed that the
Office of the Solicitor General is influential, this new model allows me to assess the more direct question of the sources of the Office’s influence without worrying about the overall sources of influence on the Court as a whole, which may lessen the impact of the
Office of the Solicitor General sources as they are a smaller portion of a bigger picture.
These new variables deserve some discussion before the models are analyzed.
The dependent variable harkens back to previous research on the Office of the Solicitor
General in that it is focused on whether the Office of the Solicitor General won or lost.
While I previously explained the problems of such analysis for including the Office of the Solicitor General as part of the decision-making literature, once it has been established that the Office is influential in that context it becomes appropriate to shift gears and use the Office of the Solicitor General win/loss variable when determining the sources of the Office’s influence because of the simplicity inherent in that approach, so long as the congruence variables are constructed to include the ideological components of previous models. 188 The four congruence variables replace the ideology of the Court, the public,
Congress and add congruence with the President. For these four congruence variables, I have constructed a measure that is not simply whether the actor and the Office of the
Solicitor General are on the same side in the case, but rather the distance from the Office of the Solicitor General’s position in each case with the Office of the Solicitor General’s position at either a 0 for conservative positions or a 1 for liberal positions. The result is that each of these congruence variables varies according to the distance the Court,
Congress, president or public opinion is from the position espoused by the Office of the
Solicitor General. For this reason, it is expected that the coefficient would be negative if the congruence affects the ability of the Office of the Solicitor General to win as the higher the value of these variables the less congruent are the actor and the Office. It should be noted that the dataset does not allow me to scale the Office of the Solicitor
General’s ideology in the same way that the Court’s ideology has been scaled. As a result there is no way to determine exactly how liberal or conservative a government request is. The Office of the Solicitor General ideology in a given case is dichotomous even though in real life this dichotomy rarely if ever exists. While not a true congruence variable, the state government opposition variable is constructed similar to the presidential variable so that where the Office of the Solicitor General is opposed by a state government this variable has a value of 1, otherwise it has a value of 0.
The remaining variables are similar to the variables included in the previous full case model in this chapter. These variables assess whether the case involves either a foreign policy or statutory issue (0 if no, 1 if yes), whether the Office of the Solicitor
General was on the petitioner’s side in the case (0 if no, 1 if yes), and whether the Office 189 of the Solicitor General was invited to file an amicus brief (0 if no, 1 if yes). The last three variables are continuous variables for the total number of cases filed as both amicus curiae and party during the previous year, and the experience advantage (or disadvantage if negative) experienced by the Office of the Solicitor General in the case.
In addition to the substantive variables, the constant becomes important here as even though the congruence variables might be statistically significant, as they are actually expected to be since when the Office of the Solicitor General’s ideology is congruent with the Court’s ideology it is expected that the Office is more likely to win.
That does not mean that the Office of the Solicitor General exerts no independent influence. Controlling for as many of the sources of influence as possible, if the constant is significant in the positive direction, then the Office of the Solicitor General is more likely to win than to lose even after taking into consideration the congruence with the
Court. In a sense the base prediction from such a model should be a 50/50 chance of winning or even less since the base assumes the Office of the Solicitor General as the respondent. The significance of the constant indicates that there is some other source of influence affecting the heightened likelihood of winning by the Office of the Solicitor
General. Whether this unaccounted for influence is one of the deference explanations, or the expertise of the office (which may also be captured in the experience variable) or some other source can not be determined from this model. However, the significance would indicate that there is some other source of influence beyond congruence or the type of case or the party position of the Office of the Solicitor General.
The model of the sources of influence with whether the Office of the Solicitor
General won or lost as the dependent variable performs largely as expected except for a 190 surprising yet explainable result for the experience advantage of the Office of the
Solicitor General. Figure 30 reveals that while the non-influence Court congruence and
Office of the Solicitor General as petitioner are major determinants of whether the Office of the Solicitor General wins or loses, there is at least one influence related factor that is significant, foreign policy issues, but in the opposite direction from expectations.
Further, as discussed above the significance of the constant suggests that there are some sources of influence this model has addressed. Even with congruence there is a portion of the Office of the Solicitor Generals’ wins for which the model does not take account.
Consistent with previous models of both influence generally and the sources of influence, the strongest determinant of outcomes is still the Court’s bias in favor of the petitioner. This is followed by the congruence with the Court’s ideology and the constant at about the same level, based on the z scores. When the United States is the petitioner they are statistically significantly more likely to win. As speculated the court congruence and public opinion congruence coefficients are negative suggesting that the greater the distance between the Office of the Solicitor General’s ideology and the ideologies of the
Court and the public, the less likely the Office of the Solicitor General is to win. The fact that congruence with the Court’s ideology increases the chances of winning should not be surprising, however, it does not mean that the Office of the Solicitor General is not influential in their own right.
The significance for the public opinion congruence is questionable but worth noting. As public opinion has rarely been significant in any of the general influence models, but has shown up as significant in both of the sources of influence models, it is possible that while public opinion is generally not important in determining Court 191 outcomes, it may be a relevant factor, though minor, when the case involves the federal government, as the party acting on behalf of the general public welfare. More research is necessary to determine whether there is a solid connection between public opinion and government cases that does not exist for the full body of Supreme Court cases. As with previous models the foreign policy variable continues to be significant in the wrong direction, so that where the case involves a foreign policy issue, rather than resulting in deference, the Court receives a signal not to trust ad listen to the request of the Office of the Solicitor General so that there is a reduced chance of the Office of the Solicitor
General winning in such cases.
Just as the foreign policy consistently is significant in the wrong direction, so too is the congressional variable, in this case the congruence of the Office of the Solicitor
General’s ideology with Congress’s ideology. As in a number of previous models,
Congress works in the wrong direction as the Court consistently appears to work in opposition to Congress so that even where the Office of the Solicitor General is congruent with Congress, there is a reduced chance of the Office of the Solicitor General winning.
192 Variables Co-efficient S.E.
Court Congruence -2.04*** .301
Public Opinion Congruence -.485* .288
Congress Congruence -.196*** .063
Presidential Congruence -.023 .052
SG Petitioner .589*** .056
State Govt Opposition -.057 .079
SG Experience Advantage -.001 .002
Statutory -.072 .062
Foreign Policy -.253*** .089
SG Filed Cases (Party) .0004 .002
SG Filed Cases (AC) .001 .002
SG Invited to File AC .093 .100
Constant 1.56*** .239 n= 2963 Likelihood Ratio 268.72 Prob>=chi2 .0000
*** p> .001; ** p> .05; * p> .1
Figure 30: Testing Sources of Office of the Solicitor General Influence Using Only Cases with Office of the Solicitor General Participation as Party or Amicus Curiae.
193 The variables that are not significant are important for their lack of significance.
First the presidential congruence variable is not significant and in the wrong direction.
This suggests that the Court is not deferring to the position of the President because of any mandate or because they are the representative of the government, but rather the
Court defers to the Office of the Solicitor General specifically, if at all, regardless of congruence between the president and the Office. Further neither the number of cases filed by the Office of the Solicitor General in the previous year, nor opposition by a state government25 reduces the chances of the Office winning. The irrelevance of the number of previous cases filed suggests that there may be no penalty against the Office of the
Solicitor General for overburdening the Court, and thus the influence is less likely to be the result of a deference to the Office for carefully picking cases at least with respect to any respect for the Office of the Solicitor General as the guardian of the Court’s caseload as some commentators have suggested.
Whether the case is statutory or constitutional is irrelevant to whether the Office of the Solicitor General wins or loses. In previous models this factor was always on the edge of significance. From this model it appears that the Office of the Solicitor General is no more or less likely to win when the case involves a statutory issue. Also somewhat surprising is the fact that an invitation to file an amicus curiae brief does not increase or decrease the chances of the Office of the Solicitor General supported party winning.
Finally, and most surprisingly, the experience advantage of the Office of the
Solicitor General does not affect the outcome of the case. However, since only Office of the Solicitor General cases are involved, this variable actually captures not whether
25State government opposition does not reduce the likelihood of the Office of the Solicitor General winning even during the more federalist oriented Burger and Rehnquist Courts. 194 experience advantage influences case outcomes, but rather whether the Office of the
Solicitor General’s experience outweighs the experience of the other party in determining the outcome. Thus the Office of the Solicitor General experience variable in this case represents any added benefit in experience accruing to the Office not the overall experience advantage as is the case in the pure attorney experience advantage variables in the general influence models. While attorney experience advantage increases the likelihood that the side with the advantage will win across all cases, for the Office of the
Solicitor General there is no added influence for their usually quite large experience advantage.
The significance of the constant does suggest that there is some source of influence missing from the model.26 Which source can not be readily determined, however, as the non-Office of the Solicitor General related influences have been accounted for in the model, the remainder is most likely to be some deference or other influence inherent in being the Office of the Solicitor General. This issue as well as the substantive impact of these sources is explored through the predicted percentages of cases won by the Office of the Solicitor General. By evaluating the predicted probabilities in the context of what is expected based on the different theoretical approaches to understanding the role of the Office of the Solicitor General it is possible to speculate about the impact of the Office’s influence beyond the sources that are controlled for in the model.
26When the individual justices are added to the model to determine whether there is a significant difference in the likelihood of winning for different Solicitors General it is found that only Rex E. Lee is significantly (p=.093) more likely to win than the baseline Solicitor General, Seth Waxman. This is largely consistent with the previous sources of influence model. 195 The base prediction is that the Office of the Solicitor General will win about 64% of their cases where there is no statutory or foreign policy issue, where the Office of the
Solicitor General is not invited to file an amicus brief, where there is no experience advantage, where there is no state opposition or congruence with the position of the president or Congress, where the Office of the Solicitor General filed the mean number of briefs in the previous year, where the Office was the respondent, and where there was equal distance between the publics and Courts positions and that of the government regardless of the position espoused by the Office.
As the results in Figure 31 reveal, the greatest substantive impact is caused by congruence with the Court’s position. When there is complete congruence between the
Court and the Office of the Solicitor General (a fiction for hypothetical purposes) 91% of the cases are predicted to be decided in the Office’s favor. When there is no congruence, in other words the Office of the Solicitor General takes an extreme liberal position with a
Court full of Clarence Thomas’, there is predicted to be a 25½% chance that the Office of the Solicitor General will win. If the attitudinal model is correct then the errors should be uniformly distributed resulting in a 9% error on either end unless the Office of the
Solicitor General exerts some independent influence beyond congruence with the Court’s ideology or any other control for that matter. Thus from this model it can be said that there is at least 16½% of the predicted wins by the Office of the Solicitor General that are attributable to some source of influence not accounted for in the model, and potentially more since the prediction for pure congruence is truncated at the top end as it approaches
100%.
196 As expected from the statistical significances, presidential congruence, state opposition, statutory cases, invitations to file amicus curiae briefs, the number of previous cases filed and the Office of the Solicitor General’s experience advantage have virtually no substantive impact on the wins and loses of the Office of the Solicitor
General. When the Office of the Solicitor General is the petitioner, there is predicted to be a 19% greater chance of winning. The chances of winning are 9% greater for the
Office of the Solicitor general when their position is congruent with public opinion, and
9% lower when they are contrary to public opinion. The chances of winning are also reduced when there is a foreign policy issue implicated in the case (-9%) and when the
Office of the Solicitor General is congruent with the median Congressional ideology (-
7%).
The results of the sources of influence model suggests that the significance of the sources of influence indicated are robust across different conceptions of the sources of influence. These models while suggesting that the Office of the Solicitor General is influential beyond the congruence of the Court’s position with that espoused by the
Office of the Solicitor General, also reveal the need for further research into the sources of the Office’s influence, most especially in the need for ways to operationalize conceptions of deference to the Office of the Solicitor General.
197 Independent Variable Predicted SG Win First Values Percent Difference Baseline Prediction* 63.8%
Pure Court Congruence 91.2% +27.4% No Court Congruence 25.6% -38.2% Pure Public Opinion Congruence 72.3% +8.5% No Public Opinion Congruence 54.2% -9.6% SG Petitioner 82.6% +18.8% Congressional Congruence 56.3% -7.5% Presidential Congruence 62.8% -1.0% State Opposition 61.6% -2.2% Average SG Experience Advantage (15) 63.0% -.8% Average SG Experience Disadvantage (-5) 64.0% +.2% Statutory Case 61.0% -2.8% Foreign Policy Case 54.2% -9.6% Low AC Filings (10) 62.8% -1.0% High AC Filings (50) 65.3% +1.5% Low Party Filings (10) 63.0% -.8% High Party Filings (100) 64.6% +.8%
Baseline Prediction based on SG Respondent, no State Opposition, not statutory or foreign policy, no Congressional or Presidential congruence, no experience advantage or amicus invitation, mean number of previous amicus and party cases filed, and Court and public opinion congruence at .5 (equal distance from liberal and conservative Office of the Solicitor General positions). All predictions calculated using Clarify for Stata 7.
Figure 31: Predictions for Office of the Solicitor General Wins Based on Sources of Influence, 1953-1999, Office of the Solicitor General as Party or Amicus Cases Only.
198 There is some form of deference or some other source of influence over Supreme
Court decisions that is not addressed in these models of the sources of the Office of the
Solicitor General’s influence. However, these models do address many of the major hypotheses concerning why the Office of the Solicitor General might exert influence, or even not exert influence due to a non-Office of the Solicitor General related factor. The answer is that some of these hypothesized reasons for success are important and unrelated to influence, yet there continues to be a residual success unaccounted for by any other factor. This residual must be attributed to the general influence of the Office of the Solicitor General through a more abstract source of influence such as deference to a co-equal branch, or strategic deference to maintain legitimacy with the enforcement branch. Regardless of the remaining source, there is some influence exerted by the
Office of the Solicitor General beyond those contained in either of the sources of influence models.
E. CONCLUSIONS
In the end these results suggest that the Office of the Solicitor General is a relatively important influence on the Supreme Court’s decisions after evaluating that influence under changed court based circumstances, changed political circumstances, and changed case based circumstances. These results suggest that the Office of the Solicitor
General is as influential as the Court’s own ideology or the ideology of the petitioner, two factors that have consistently been viewed as relevant factors in research on Supreme
Court decision-making, under a wide variety of circumstances. 199 This and the previous chapter have helped to solidify the concept that the Office of the Solicitor General is an important influence on the Supreme Court’s decisions. The results are mostly robust across many changed circumstances, and even for most of the individual justices, and not just for the Court as a whole. The final question for which this chapter begins to provide an answer is why are they influential. Each sub-analysis explores a different hypothetical reason for the Office of the Solicitor General’s influence. The findings of this chapter suggest that some of the potential sources of influence are not affecting the Court’s decisions, while others are still relevant.
Interestingly, it appears that the intangibles, like the idea that the Court gives some deference because the Office of the Solicitor General carefully reviews cases before filing only a small handful of the potential cases, are more important than the tangible sources, like statutory versus constitutional cases. Further research needs to be conducted to explore the sources of influence in detail.
200 CHAPTER 6
CONCLUSIONS AND FUTURE RESEARCH
The Office of the Solicitor General has always been more successful than the
average party before the United States Supreme Court. With this research I have
provided evidence that this success is the result of influence exerted by the Office of the
Solicitor General in addition to being the result of certain factors external to the Office
such as congruence of the request of the Office with the ideological preferences of the
Court, or the experience advantage the attorneys in the Office of the Solicitor General
usually enjoy.
In order to move beyond the success of the Office of the Solicitor General it was
necessary to incorporate the influence into broad models of Supreme Court decision-
making so that the analyses control for as many potential influences on the Court’s
decisions as possible.. This was done for all cases from 1953-1999 and for a number of
subsets designed to address different court, political and case based factors that might
affect the influence. In the end I have shown that the success of the Office of the
Solicitor General is the result of influence on the decisions of the Court and many of the individual justices when the Office acts as both amicus curiae and party. This result held steady across an amazingly large range of data permutations. These additional subsets of
201 the data showed that the Office of the Solicitor General was generally influential
regardless of the time period studied whether determined by natural court, chief justice
era, presidential tenure or Solicitor General tenure. The results were less clear for
different issue areas, but even for a majority of the different issue areas studied the Office of the Solicitor General proved to be influential. Further, many but not all of the individual justices appear to be influenced by the arguments or presence of the Office of the Solicitor General, though the influence does not have the same impact for all justices.
It must also be noted that the analysis of whether the individual justices are influenced by the Office of the Solicitor General lends support to the goal-oriented theory of Supreme Court decisions. The justices are individualistic in whether they are influenced. Some justices are not influenced by the Office of the Solicitor General’s positions, while others show almost complete reliance on the Office of the Solicitor
General’s positions. This supports the conception that each justice considers different factors when making decisions. While this research can not explore the second half of this argument, that the justices often employ different weights of the relevant factors in different issue areas, the fact that different justices appear to have different goals as evidenced by the differences in the influence of the Office of the Solicitor General, suggests that the goal-oriented approach to Supreme Court decision-making is at least in part correct, understanding that generally the justices’ ideologies play a major factor in a majority of cases.
Because of the findings that the Office of the Solicitor General generally exerts some influence over the decisions of the Supreme Court, I then proceeded to determine the sources of the Office’s influence (whether inherent in the Office of the Solicitor 202 General or external to the office) and found that congruence with the ideology of the
Court and being the petitioner are major factors in the success of the Office. These factors do not explain the entirety of the success of the Office of the Solicitor General suggesting that there are some more abstract sources of influence not captured in by these variables, and the models in my analysis for that matter suggesting more avenues of research. Unfortunately it was easier in theory than in practice to capture the sources of influence as many of the potential theoretical explanations for the influence are not conducive to operationalization given the current data. However, the evidence does suggest that there is some general deference to the Office of the Solicitor General’s position from the justices.
This deference can not be further broken down to determine the exact reason for the deference without further research, and in fact may never be determinable because it relates to the mental calculations of the justices. However, it is likely to be some balance of a number of factors. These include first deference to a more democratic branch of the government as the representative of the people. Second, there is likely to be a strategic element to the deference. Even the attitudinalists tend to recognize that there may be strategic reasons the justices might divert from a pure reliance on their ideological preferences at least in some cases. This strategic element gives rise to deference to the
Office of the Solicitor General because the Court needs the executive branch for implementation of its decisions. This strategic deference does not require the Court to give in on all issues, but rather to defer in a majority of those cases where the executive branch is more directly needed for the implementation. This gives rise to the possibility of future research to determine the types of cases that require assistance and those where 203 Court action is sufficient. This type of deference helps the Court maintain its legitimacy before both the executive branch and the public.
These findings have implications for the study of judicial decision-making.
Scholars have struggled with how best to incorporate factors other than case facts and justice ideology into the decision-making calculus. This has resulted in a split among scholars concerning whether the outside factors like Congress, the President or Office of the Solicitor General, and public opinion should be included at all. The attitudinal model and its proponents have tended to discard these outside factors. Others who claim that the justices employ a multifaceted (not limited to their own ideology) approach prefer to include these outside influences in the analysis of the Supreme Court’s decisions. My research points out the need for the inclusion of at least the Office of the Solicitor
General’s position as an integrated part of the decision-making literature rather than as an independent analysis of only Office of the Solicitor General cases. The Office has almost equal substantive weight in the general models to that of changes in the ideology of the
Court to the point that a liberal position by the Office of the Solicitor General has the effect of canceling out a strong conservative Court such that the decision has the same chance of being liberal as it would with a moderate Court (see Figure 13). The combination of the Court’s ideology, the general bias for the petitioner reflecting the
Court’s propensity for taking cases it wishes to overturn, the experience advantage of the attorneys arguing the case, as posited by McGuire, and the Office of the Solicitor
General’s request in a case prove to explain almost all of the variance in Court decisions with other factors like state government requests, public opinion, and Congress revealing themselves to be relevant only occasionally. 204 The influence exerted by the Office of the Solicitor General may in fact be stronger than reveled through the results herein. The impact of the Office of the Solicitor
General is likely to be somewhat muted in these analyses due to the conflation of justice votes in cases with justice ideology. Even with this conflation, the Office of the Solicitor
General is influential more often than not. As this is true, the use of the votes in decisions as a proxy for the ideological preferences of the justices is even more problematic than recognized in the decision-making literature, especially when it comes to understanding the role played by the outside actors in the decision-making process.
Since part of what is being captured through the vote scores is the deference or influence of the Office of the Solicitor General in addition to the ideologies of the justices, not to mention the potential for Congressional preferences and public opinion preferences to be included in the measure, it is likely that the influence of the Office of the Solicitor
General is even stronger than here revealed.
In order to address this concern an attempt to create an independent measure of justice ideology is necessary. For this reason I have been working to develop a survey of legal scholars and political scientists interested in judicial politics designed to assess the perceived ideologies of the justices. Such a measure would be at least in part independent of the votes of the justices as the survey respondents can include their knowledge of the justice’s out of court statements, scholarly writings, journalistic accounts, and personal beliefs about the true ideology of the justices in addition to evidence from court cases (though not necessarily all cases as occurs with the vote scores). The measure created from the survey results would be beneficial for research not
205 just on the Office of the Solicitor General, but also on Congress, public opinion and the states in their relations with the Supreme Court.
The results of this research are not limited to implications for studying the Office of the Solicitor General, but also for better understanding the roles played by Congress, the public and the states. For some justices and in some time periods these other actors appear to influence the Court, though not always in the expected direction. The debate over whether these actors are influential in Supreme Court decisions is ongoing and should continue with new approaches designed to assess the influence under a variety of circumstances. Further, research into the differential roles of the Office of the Solicitor
General as amicus curiae and party, and the explanations of any differences in impact, especially over time are important next steps.
Studies of the decision-making on the Supreme Court should never be satisfied with a partial explanation of those decisions driven by the strength of the ideologies of the justices. If nothing else, this research reveals that this reliance on ideology is misguided and deflects from the true purpose of research into the decision-making of the
Supreme Court- to understand what truly goes on in the minds of the justices when they make their decisions, and how the mix of case facts, their own personal preferences and pressures from outside factors combine to allow supreme law to be fashioned. If we limit ourselves to the ideologies of the justices we miss the complexity of the process and paint an incomplete political picture. This is one of the reasons that political science research, while sounder empirically, is not generally accepted by legal academics and legal practitioners; they believe it is based on a flawed underlying premise. We have much to learn from legal academics just as they have much to learn from political scientists. 206 Research such as this that attempts to bridge the gap and include those factors legal scholars claim to be important for at least the purpose of testing the legal hypotheses should continue in other areas than just the Office of the Solicitor General’s role.
These other areas include further research into what appears from my results to be an increasing influence by the state governments. Most of the judicial research operates in two separate spheres, federal and state. However, the actors do not remain exclusively in their own spheres. As the state government positions are significant influences on decisions in some cases, especially more recently, it is important to understand this federal state dynamic and more research is necessary into the role of the state governments.
The results for the sources of influence point out the difficulty in assessing abstract notions like deference or even expertise. It may be possible to develop measures of these concepts by looking at individual cases more closely. This can be done through careful reading and coding of cases looking for hints about deference or reliance on some outside actor, or through content analysis to determine the usage of certain key words.
Furthermore, the briefs of the parties and amici in combination with the decisions are likely to reveal more complete pictures of how the actors influence the decisions of the
Court. If the justices have not completely made up their mind about a case based on their ideology once they read a summary of the case, then it is likely that the briefs and oral arguments bear some weight on their decisions. How much weight and in what way they are influenced can not be determined without some more careful analysis of these Court documents and arguments which we can assume serve some purpose for the Court.
207 The McGuire line of inquiry concerning the effects of having an experience advantage before the Court leads to additional questions about what other attorney related factors are relevant in the decision-making process. Initially, this is simply a question of whether the gender or race of the attorney affects their chances of winning. Also relevant might be their religion, the size and or prestige of their law firm, their law school experience and other personal factors. Similarly, the interest group for whom the attorney works (especially when filing as an amicus curiae) might affect the influence of the arguments. Two more direct background factors I have mentioned, but which have not been explored in this work are the success/influence of former attorneys in the Office of the Solicitor General, and whether in circum when the Solicitor General personally argues, the Office is more influential or successful.
Just as evidence that the Office of the Solicitor General is more successful than the average litigant before the Supreme Court can not be the end of the inquiry into the role played by the Office of the Solicitor General, evidence that the Office of the
Solicitor General is influential on the decisions of the Supreme Court does not complete the picture. The sources of influence are relevant and interesting, leading to new theoretical views of the operation of the Court. The influence appears not to be derived from the more substantive theoretical reasons for the influence like the experience or expertise of the attorneys in the office, or expertise in specific issue areas, but rather from a more abstract or strategic idea of deference suggesting the need to look beyond the hard substantive explanations of the Courts decisions towards these abstract ideas. This may be a very difficult line of research but can be very interesting and rewarding.
208 Even in this research I have barely scratched the surface of the role of the Office of the Solicitor General. Supreme Court decision-making is open to an approach that incorporates the potential influence factors into a coherent model. My research here has taken but one step in this direction resulting in a little better understanding of the interplay of forces focused on the Office of the Solicitor General. This approach can be continued and revised until a comprehensive view of the Supreme Court’s decisions is developed. However, as some of the changes in the factors in the time-based models reveal, the decision-making process is a dynamic process contingent on the members of the Court at any given point in time, the mix of cases before the Court, and even the issues that are most dominant in the culture at any point in time, not to mention the new issues of law that emerge as technology and international relations emerge more predominantly in the culture of the United States. Thus the study of the Court’s decisions will continue to develop and change just as the way cases are decided on the Supreme
Court. The models that are able to explain a majority of the Court’s decisions may be useless in the future. Lincoln Caplan speculated that the Reagan Office of the Solicitors
General had eroded the trust in the Office such that the influence of the Office was likely to be reduced over time. The Caplan hypothesis is not supported by the evidence presented in this dissertation. However, other changes may reduce the power of the
Office of the Solicitor General or even increase their influence in the future.
For now it is enough to say that the Office of the Solicitor General influences the decisions of the Supreme Court. That influence appears to be the result of some decision on the part of the justices on the Court to defer to the Office of the Solicitor General.
Beyond this much more can be done to explore these sources of influence in more detail 209 through case studies of the briefs and decisions in selected terms before attempting once again to explain the decisions of the modern era of the Court. In addition the influence of the Office of the Solicitor General is a small but important of the decision-making calculus of the Supreme Court and should therefore be included in any models of the
Supreme Court decisions.
210 APPENDIX A
ALTERNATE MEASURES OF SUPREME COURT PREFERENCES
Variables Vote Score Segal-Cover Ideology Point Court Ideology 1.894*** .363*** -.101*** (.218) (.049) (.015) Liberal Petitioner .569*** .538*** .569*** (.037) (.037) (.037) Liberal SG .404*** .393*** .397*** (.058) (.057) (.057) Conservative SG -.439*** -.451*** -.449*** (.052) (.052) (.052) Liberal State Govt .059 .051 .052 (.070) (.070) (.070) Conservative State Govt -.083* -.078* -.084* (.045) (.044) (.044) Congress Ideology -.397** .192 -1.10*** (.196) (.216) (.214) Public Opinion Ideology .001 -.001 .003 (.004) (.004) (.004) Attorney Experience .004*** .005*** .005*** Advantage (.001) (.001) (.001) Liberal SG Amicus .445*** .438*** .403*** (.066) (.066) (.065) Conservative SG -.518*** -.530*** -.576*** Amicus (.071) (.071) (.070) Constant -1.261*** -.123 -.308 (.237) (.254) (.249) n= 5466 5505 5505 Pseudo R-squared= .1125 .1061 .1043 Likelihood Ratio= 851.29 808.56 795.46 Prob> chi2= .0000 .0000 .0000
*** p> .001; ** p> .05; * p> .1
Note: the ideology point variable was coded with conservative being positive and liberal being negative for consistency with the original data in Bailey and Chang (2002). Therefore the negative coefficient still indicates a greater chance of a liberal outcome when the median justice on the Court is more liberal.
Figure 32: Influence of Independent Actors on the Outcome of Cases Controlling for the Ideological Preferences of the Justices Comparing Vote Scores, Segal-Cover Scores and Ideology Scores as Measures of the Court’s Preferences, 1953-1999.
211 APPENDIX B
MODELING ATTORNEY EXPERIENCE ADVANTAGE
Figure 33: Bar Graph of Attorney Experience by Liberal Decisions, 1953-1999.
The graphic representation of the proportion of liberal decisions compared to the
experience advantage of the attorneys shows that the greatest change in the proportion of
212 liberal outcomes occurs between plus 10 to 20 cases and minus 10 to 20 cases. After the advantage reaches 20 cases the impact on decisions tends to decrease and then level off at an advantage of around a 60 to 70 case advantage. Any advantage greater than about a
70 case advantage appears to actually work in the other direction (as the advantage of 1 case of experience is greater than the effect of additional experience on the tails) resulting in a reduced proportion of outcomes in the preferred direction at the extremes.
Because of this information I employed 2 non-linear models of attorney experience advantage as alternatives to the standard linear conception. I first modeled the experience advantage as a cubic function that creates the S curve as seen with this data. The cubic was used in the same model as I employ for the primary influence analysis. However, the results did not comport with even a reasonable interpretation of the data as the inflection points on the curve were at about a 20 experience advantage.
This resulted in predictions that indicated that any time the experience advantage exceeded 100, there was a greater likelihood of an outcome that was opposite of the preferred outcome that if the attorney had even a 3 experience disadvantage. So when an attorney had a 100 experience advantage on the liberal side there was a 6% greater chance of a conservative outcome than if neither attorney had an advantage, whereas a 3 experience advantage on the conservative side only resulted in a 5.5% advantage to the conservative side. I also attempted to employ a stepwise regression because of the possibility that the advantage on the liberal side did not match the advantage on the
213 conservative side. The results were similar in this model to those found in the cubic model.
In the end I determined that the linear model was the best representation of the actual data, at least until a cubic model that can compensate for the odd shaped curve seen in the data can be formulated and employed without creating impossible or at least highly improbable predictions.
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