BOOK REVIEW: A New (Scientific) Look at the SG and the Court (reviewing Black and Owens’s The Solicitor General and the United States Supreme Court: Executive Influence and Judicial Decisions)
Ryan C. Black & Ryan J. Owens, The Solicitor General and the United States Supreme Court: Executive Influence and Judicial Decisions (Cambridge University Press, 2012)
I think a strong Solicitor General can have a very considerable influence on the Court.
– Erwin Griswold
Recently the Justices asked the Solicitor General’s office for its views on two cases, one concerning the Clean Water Act, and the other concerning the immunity of a foreign government’s central bank when the U.S. seeks to seize its assets. Though standard fare, the request reminds us of the importance that of SG’s office in our system of justice. To understand the workings of the Court, it is important to understand the workings of the SG’s office and how the two interact. Or as Lincoln Caplan put it in his The Tenth Justice: The Solicitor General and the Rule of Law (1987): “The relationship between the Supreme Court and the SG’s office has long been more intimate than anyone at either place likes to acknowledge.” Indeed. Thankfully, some of that intimacy is subject to scrutiny, as a forthcoming book on the subject reveals.
A newly released book is sure to be of interest to Court watchers. I refer to The Solicitor General and the United States Supreme Court: Executive Influence and Judicial Decisions (Cambridge University Press, 2012) by political science professors Ryan C. Black (Michigan State University) and Ryan J. Owens (University of Wisconsin, Madison). Both have written extensively, and continue to do so, on the Court, its workings, and on constitutional law generally. As their book and other works make clear, different SG’s approach their job quite differently and what they do can sometimes shape the resulting law announced by a majority of the Court. (See Michael McConnell, “The Rule of Law and the Solicitor General,” 21 Loy. L.A. L. Rev. 1105 (1988), and Steven Calabresi, “The President, the Supreme Court & the Constitution,” 61 L. & Contemp. Probs. 66 (1998).)
“Learned in the law”
The Office of the Solicitor General (OSG) is a curious institution. On the one hand, the SG is the lawyer for the Executive Branch, yet on the other hand the SG enjoys chambers at the Supreme Court as if he or she were a “tenth justice.” Though the SG is independent of the Court, the Justices are frequently dependent on the SG’s counsel. Not surprisingly, then, federal law (28 U.S.C. § 505) requires that the SG, and no other, be “learned in the law.”
The SG’s influence can hardly be denied. As David O. Stewart has observed: “The Justices have relied on the SG to screen unworthy petitions for certiorari and to provide a complete statement of the relevant law. And they have granted a disproportionately high proportion of the SG’s petitions for certiorari, invited his views on cases ion which the government was not a party and tended to rule in his favor.” (Book Review, ABAJ, Nov. 1, 1987, at 136.) So, exactly, how influential is the OSG when it comes to what the Court does or does not do? Professors Black and Owens answer that question by way of a remarkable illustration offered up in the first chapter of their nine-chapter book. This illustration, about which more will be said momentarily, sets the stage for a rigorous and detailed examination, replete with charts, of the work of the OSG and how it helps shape Supreme Court law. Their work-product derives largely from, among other things, cert pool memos, private docket sheets, and other archival data collected by them and other scholars. The result is a remarkable, as their discussion of National Organization of Women v. Scheidler (1994) illustrates.
The big turn-around: From 6-3 to 9-0
Originally, the Court did not want to hear the Scheidler case. There were not four views to grant cert to entertain the question whether RICO could be used against abortion protestors. The lower appellate courts had ruled against NOW. When NOW sought review in the matter, the (unidentified) Justice Blackmun clerk assigned to write the cert memo urged against the Court taking the case:
Whenever a case involves abortion, there is a risk that the parties will become distracted, and that the real issue will be distorted. The risk seems especially great in a case in which [one] of the plaintiffs (NOW) is a leading proponent of the ‘pro-choice’ position and [one] of the defendants (Operation Rescue) is a leading proponent of the ‘pro-life’ position” (Cert Pool Memo, No. 92-780).
Furthermore, there was another consideration:
It’s very hard to predict what this Court would do with a case like this, and it’s equally hard to tell what unintended consequences would flow from a precedent one way or another” (Cert Pool Memo Markup, No. 92-780).
End of case. But Fortuna had other plans. During conference a handful of the Justices suggested the OSG weigh in. These Justices wanted to know what SG Drew Days and his colleagues thought of the matter. When the government submitted its briefs it had a contrary view and urged the Court to hear the case and reverse the lower courts. Here is what it said in that brief:
The courts below rested their decision to dismiss solely on their incorrect conclusion that RICO requires proof that the defendant was motivated by an “economic purpose.” Those courts have had no opportunity to assess respondents’ motion to dismiss under the correct legal standards. Under the correct legal standards, it is clear that petitioners have properly alleged each element of a RICO violation under 18 U.S.C. 1962(c) and (d), and that the courts below therefore erred in dismissing their claims.
The Court granted review, the case was argued (by Miguel Estrada for the government), and NOW prevailed. How? Turns out that Justice O’Connor was persuaded by the SG’s brief and changed her vote, thus allowing for the necessary four votes to hear the case. Chief Justice Rehnquist then wrote a unanimous opinion for the Court and ruled in favor of NOW. (That did not end the matter as evidenced by the Court’s 8-0 ruling against NOW in Scheidler v. NOW (2006).)
Weighing the future in First Amendment expression cases
But Fortuna doesn’t always smile kindly on the OSG. Just consider the shellacking the OSG took in United States v. Stevens (2010), it is clear that the Court sometimes takes exception to the counsel offered to it. Recall the following admonition by Chief Justice John Roberts speaking for an 8-1 majority in Stevens: “Despite the Government’s assurance that it will apply §48 to reach only ‘extreme’ cruelty, this Court will not uphold an unconstitutional statute merely because the Government promises to use it responsibly.” Admittedly, this seems the exception. By much the same measure, for example, the OSG’s brief in United States v. Alvarez (2012) did not carry the day, especially when considered alongside briefs such as the one filed by the Reporters Committee for Freedom of the Press and Twenty-Three News Media Organizations, which, by contrast, was cited approvingly in the plurality opinion.
When it comes to First Amendment expression cases, is Stevens the rare exception, the occasional deviation, or is it indicative of something else altogether? The answer to that question may take yet another look at the Court’s interaction with the OSG.
So how influential is the OSG?
Back to the bigger picture: Based on the authors’ examination of considerable data, studies, and cases, their conclusions may strike some as surprising and others as predictable:
- The importance of absence: “When the United States Solicitor General’s Office is absent from a case, the Court will behave differently. It will set its agenda differently. It will rule on cases differently. Every aspect of the Court’s decisionmaking process will be different when the Solicitor General’s Office does not participate.
- The relative unimportance of ideology: “If we assume that the Justices consider the SG’s ideology in addition to other features of a case, we find that even those most opposed to the SG will still follow his recommendations in a significant number of cases.”
- Shaping precedent: “We observed a significant increase in the probability that the Court positively and negatively interprets precedent, simply because the OSG asked it to do so. . . Put plainly, the OSG is considerably influential in persuading the Court to treat precedent positively or negatively.”
- The importance of objectivity and professionalism: “The data are less clear, but they do appear to line up behind one theory: that OSG success comes from its objectivity and professionalism. . . . [Things] like attorney experience, the separation of powers, attorney quality, ideology, and selection strategy fell by the wayside” when compared to professionalism. “To be sure, this is not to say that these factors do not matter. It is, rather, to make the argument that these factors do not systematically generate OSG influence. Instead, our belief is that OSG objectivity and professionalism, and independence likely leads to its influence.”
Such conclusions, of course, stand to be tested once The Solicitor General and the United States Supreme Court is subject to scrutiny in the professional and scholarly arenas. But if it prevails (or nearly so) in that realm, then this will be a “must read” book for lawyers who litigate before and scholars who study the work of the Supreme Court.
Ronald K.L. Collins is the Harold S. Shefelman scholar at the University of Washington School of Law. His next book, Floyd Abrams and the First Amendment, comes out this January followed in March by Mania: The Story of the Outraged and Outrageous Lives that Launched a Generation (with David Skover).