The solicitor general of the united states: Tenth justice or zealous advocate?

Yale Law Journal

Volumn 121, Issue 3, 2011, Pages 725-737

  Chandler, Adam D ^a  

^a NONE

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EID: 82755177407     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (146)

1. See infra note 25 for a caution against inferring causation in either direction exclusively.
2. Cf. Adam Chandler, The Early Brief Gets the Worm, SLATE (Dec. 5, 2008), http://www.slate.com/id/2206039 (noting the lack of scrutiny of cert.-stage amicus filings).
3. Adam Chandler, The One Question Elena Kagan Won't Get Asked, AOL NEWS (June 29, 2010), http://www.aolnews.com/2010/06/29/opinion-the-one-question-elena-kagan-wont-get-asked (describing the lack of scrutiny during Supreme Court confirmation hearings of the Court's cert. practice).
4. Because the current Solicitor General is male, I use male pronouns throughout the Comment when discussing the Solicitor General.
5. 28 U.S.C. § 505 (2006).
6. Nearly a century and a half after Congress created the Solicitor General's position.
7. see Act of June 22, 1870, ch. 150, § 2, 16 Stat. 162, 162, The identity of the Solicitor General's "client" remains a matter of some debate. Some suggest that the Solicitor General represents the President.
8. See, e.g.,Cornell W. Clayton, The Politics Of Justice: The Attorney General And The Making Of Legal Policy 58-61 (1992).
9. JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED 411 (2002). Others say his client is simply "the United States."
10. See Solicitors General Panel on the Legacy of the Rehnquist Court, 74 GEO. WASH. L. REV. 1171, 1180 (2006).
11. (statement of Walter E. Dellinger, III); L. Sundquist, Learned in Litigation: Former Solicitors General in the Supreme Court Bar, CHARLESTON L. REV. 59, 64 (2010).
12. For others, the client "is but an abstraction." FRANCIS BIDDLE, IN BRIEF AUTHORITY 97 (1962). One former Solicitor General maintains that the Solicitor General has an obligation, at various times, to nine different clients, including the people of the United States,
13. Congress, and the administration in which he serves. Drew S. Days, III, Executive Branch Advocate v. Officer of the Court: The Solicitor General's Ethical Dilemma, 22 NOVA L. REV. 679, 681 (1998).
14. The debate is important in some circumstances, and, given that the Solicitor General is more solicitous of government actors like Congress and the President in petitioning for cert., the Office's cert. practice probably impacts some "clients" more dramatically than others.
15. Still, this Comment's position is that, in general, regardless of the precise formulation given to the Solicitor General's client, that client would be better served by a more zealous advocate at the cert. stage.
16. Margaret Meriwether Cordray & Richard Cordray, The Solicitor General's Changing Role in Supreme Court Litigation, 51 B.C. L. REV. 1323, 1326 (2010).
17. See Sundquist, supra note 5, at 64.
18. See 28 C.F.R. § 0.20(a) (2010). There are rare exceptions when the Solicitor General authorizes another government lawyer to represent a government entity at the Court. E.g., Metro Broad., Inc. v. FCC, 497 U.S. 547 (1990).
19. see 28 U.S.C. § 518.
20. See REBECCA MAE SALOKAR, THE SOLICITOR GENERAL: THE POLITICS OF LAW 12-13 (1992).
21. Cordray & Cordray, supra note 6, at 1328.
22. LINCOLN CAPLAN, THE TENTH JUSTICE: THE SOLICITOR GENERAL AND THE RULE OF LAW 6 (1987).
23. quoting Interview by Lincoln Caplan with Justice Potter Stewart (June 5, 1985)).
24. See SALOKAR, supra note 9, at 18, 160.
25. Rex E. Lee, Lawyering for the Government: Politics, Polemics & Principle, 47 OHIO ST. L.J. 595, 598 (1986).
26. cf. Richard J. Lazarus, Advocacy Matters Before and Within the Supreme Court: Transforming the Court by Transforming the Bar, 96 GEO. L.J. 1487, 1496 n.45 (2008)
27. (observing that counts of the Solicitor General's petitions are actually inflated because many of those petitions are not true requests for review but rather are filed so that a case will be held pending decision in a related case).
28. See SALOKAR, supra note 9, at 110.
29. Cordray & Cordray, supra note 6, at 1328.
30. Five Questions for. Gregory Garre on "The Tenth Justice," LEGAL PULSE (July 12, 2011), http://wlflegalpulse.com/2011/07/12/five-questions-for-gregory-garre-on-the-tenth-justice.
31. "The SG inevitably takes its cues from the Court." (statement of former Solicitor Gen. Gregory Garre).
32. Solicitor Gen. Elena Kagan, Remarks at the Ninth Circuit Judicial Conference (July 23, 2009), available at http://www.ce9.uscourts.gov/video/Kagan_web_full.wmv.
33. "When we think about whether to file a petition for cert., we look at it in part through the lens of the Court. We ask how the Court is going to view this, what standards the Court applies to those decisions, and we try to apply those same standards.".
34. See SUP. CT. R. 10.
35. See H.W. PERRY, JR., DECIDING TO DECIDE: AGENDA SETTING IN THE UNITED STATES SUPREME COURT 221 (1991).
36. "[A] case is certworthy because four justices say it is certworthy"
37. SALOKAR, supra note 9, at 113.
38. Alumni of the Solicitor General's Office confirm that the Office has grown more restrictive in seeking cert. in concert with the Court's evidently heightened standards for granting cert.
39. See Adam Chandler & Jennifer Harris, Important Questions of Federal Law: An Empirical Survey of Possible Explanations for the Supreme Court's Declining Docket 6 (Sept. 18, 2009) (unpublished manuscript), available at http://www.law.yale.edu/documents/pdf/Clinics/Declining_Docket_Student_Conference_Paper_Chandler_and_Harris.pdf.
40. Five Questions for. Gregory Garre on the "Tenth Justice," supra note 13
41. "As the Court has seemingly heightened its standards for determining what is cert-worthy, the SG no doubt has as well."
42. Statement of former Solicitor Gen. Gregory Garre.
43. see also Cordray & Cordray, supra note 6, at 1352
44. "[T]he Solicitor General's office has raised the threshold for seeking review.".
45. There are other potential explanations for the Solicitor General's decline in cert. activity.
46. Perhaps the federal government is involved in less litigation than in the past, or perhaps the federal government is winning more of its cases in the lower courts.
47. There is some indirect evidence supporting each of those explanations.
48. See Margaret Meriwether Cordray & Richard Cordray, The Supreme Court's Plenary Docket, 58 WASH. & LEE L. REV. 737, 768-71 (2001).
49. Scholars have ultimately found those explanations unpersuasive, however.
50. See Cordray & Cordray, supra note 6, at 1350
51. "Neither of these factors, however, can explain the Solicitor General's most recent reduction in petitions for review."
52. Cordray & Cordray, supra note 6, at 1338.
53. see Chandler & Harris, supra note 16, at 4-6.
54. Chandler & Harris, supra note 16, at 5.
55. See Cordray & Cordray, supra note 6, at 1348.
56. Chandler & Harris, supra note 16, at 5.
57. See Solicitor General Oversight: Hearing Before the S. Comm. on the Judiciary, 104th Cong. 52 (1995)
58. prepared statement of Thomas G. Hungar.
59. SALOKAR A, supra note 9, at 25, 108.
60. ROBERT L. STERN ET AL., SUPREME COURT PRACTICE: FOR PRACTICE IN THE SUPREME COURT OF THE UNITED STATES 164 & n.6 (8th ed. 2009).
61. Identifying the discrepancy.
62. Lazarus, supra note 12, at 1493 (same).
63. Corey A. Ditslear, Office of the Solicitor General Participation Before the United States Supreme Court: Influences on the Decision-Making Process 32 (photo. reprint 2004) (2003).
64. Unpublished Ph.D. dissertation, Ohio State University
65. On file with the Yale Law School Library.
66. See Chandler & Harris, supra note 16, at 1.
67. See Chandler & Harris, supra note 16, at 1.
68. See Stras, The Supreme Court's Declining Plenary Docket: A Membership-Based Explanation, 27 CONST. COMMENT. 151 (2010).
69. Cordray & Cordray, supra note 6, at 1340.
70. see Cordray & Cordray, supra note 16, at 763-71.
71. It would be a mistake, though, to infer pure causation in either direction. Instead, a downward-spiraling feedback loop is likely operating.
72. In one direction, the Cordrays have shown that the declining number of petitions filed by the Solicitor General's Office plays a significant role in driving down the Supreme Court's docket size.
73. In the other direction, when the Supreme Court's docket declines, the Solicitor General likely responds by raising his standards for seeking cert. to match the Court's seemingly heightened exclusivity.
74. Accordingly, he may file fewer petitions and further shrink the Court's docket. And so on.
75. As a theory of the Solicitor General's role, the "Tenth Justice".
76. Model is captured in its most potent form by David Strauss, who wrote that, under a "Tenth Justice" approach.
77. "the Solicitor General should simply take the position that reflects his best judgment of what the law is, just as he would if he were literally a Justice."
78. David A. Strauss, The Solicitor General and the Interests of the United States, LAW & CONTEMP. PROBS., Winter/Spring 1998, at 165, 168.
79. The strong Tenth Justice model is not widely embraced.
80. See CLAYTON, supra note 5, at 61
81. quoting Warren E. Burger, Tribute, Wade McCree, 21 LOY. L.A. L. REV. 1051, 1052 (1988)
82. describing the Solicitor General as "the Government's advocate in the Supreme Court, not the Supreme Court's representative in the Department of Justice".
83. SALOKAR, supra note 9, at 98
84. quoting four former Solicitors General rejecting the "Tenth Justice" appellation.
85. MODEL RULES OF PROF'L CONDUCT pmbl. ¶¶ 2, 8-9 (2008).
86. pmbl. ¶ 8.
87. E.g., id. pmbl. ¶ 18, R. 1.9 cmt. 1, R. 1.11.
88. Lovitt, Note, Fight for Your Right To Litigate: Qui Tam, Article II, and the President, 49 STAN. L. REV. 853, 886 (1997).
89. "By failing to challenge the [False Claims Act]'s encroachment on core executive powers, the Solicitor General has abdicated its duty to advocate zealously on behalf of its client-the President of the United States.".
90. Lee, supra note 12, at 598.
91. cf. Kagan A, supra note 13, at 10:30
92. "I say 'no' all the time.".
93. See Archibald Cox, The Government in the Supreme Court, 44 CHI. B. REC. 221, 224-25 (1963)
94. (quoting Judge Hand). Judge Hand was referring to the Solicitor General's occasional practice of confessing error after the government has won in the lower courts, a practice outside this Comment's scope.
95. See, e.g., United States v. Deloitte LLP, 610 F.3d 129 (D.C. Cir. 2010).
96. The Solicitor General declined to petition for cert. in Deloitte despite an acknowledged split with two other circuits on the scope of the work-product privilege.
97. See Alan Horowitz, No Supreme Court Review in Deloitte, TAX APP. BLOG (Sept. 27, 2010), http://appellatetax.com/2010/09/27/no-supreme-court-review-in-deloitte.
98. See Linda R. Cohen A. & Matthew L. Spitzer, The Government Litigant Advantage: Implications for the Law, 28 FLA. ST. U. L. REV. 391, 395-96, 421 (2000).
99. arguing that the Solicitor General's Office is so selective that its screening process alters the Court's "menu of cases" and prevents the Court from hearing cases that it would like to.
100. id. at 414
101. Estimating that the Solicitor General keeps away from the Justices 20% of the cases that they would want to review.
102. But cf. United States v. Providence Journal Co., 485 U.S. 693, 702 n.7 (1988).
103. expressing the Court's expectation that the Solicitor General will decline to petition in some of the cases that the government lost below, despite the wishes of interested agency heads.
104. Cordray & Cordray, supra note 6, at 1346.
105. It is instructive to compare the Cordrays' findings to then-Solicitor General Kagan's apparent overestimation of the Court's reliance on the Solicitor General's judgment in seeking cert.
106. "[W]e'll think about how it's likely to look from the Court's perspective, because we know that the Court counts on us to take into account its own set of criteria and standards for deciding on cert. petitions.".
107. Kagan, supra note 13, at 7:18.
108. See Cordray & Cordray, supra note 6, at 1345-46, 1366-68.
109. The Court has also responded by calling for the views of the Solicitor General on other parties' petitions more frequently.
110. See Tony Mauro, Justices Increasingly Asking the SG's Office for Its Views, NAT'L L.J., Aug. 24, 2011, http://www.law.com/jsp/nlj/PubArticleSCI.jsp?id=1202512126287.
111. Cordray & Cordray, supra note 6, at 1346.
112. Compare supra text accompanying notes 35-38, which explains how the Solicitor General's restrictive petitioning may actually be positioning the government to lose more frequently at the Supreme Court.
113. This Comment takes no position on the desirability of a larger Supreme Court docket.
114. Accordingly, this Section has ignored that result as a probable consequence of an increase in government cert. petitions.
115. See, e.g., SALOKAR A, supra note 9, at 115
116. "The importance of the reputation of the solicitor general's office has often been cited as a key variable in case selection.".
117. Cordray & Cordray, supra note 6, at 1330
118. "By carefully limiting the number of petitions filed, the Solicitor General's office. safeguards its reputation with the Court. ".
119. Wade H. McCree, The Solicitor General and His Client, 59 WASH. U. L.Q. 337, 341 (1981).
120. "[O]ur need to preserve credibility when we advise the Court. requires rejection of many such proposals for certiorari.".
121. sources cited infra note 42.
122. Kagan, supra note 13, at 11:04.
123. Two other members of the Solicitor General's Office made similar remarks about the credibility of the Office.
124. Neal Katyal, Acting Solicitor Gen. Address to Interns in the U.S. Department of Justice's Civil Division (Aug. 4, 2010).
125. Edwin Kneedler, Deputy Solicitor Gen., Address to the Supreme Court Advocacy Clinic at Yale Law School (Apr. 6, 2010).
126. See supra text accompanying note 21.
127. James L. Cooper, The Solicitor General and the Evolution of Activism, 65 IND. L.J. 675, 694-95 (1990).
128. There is no tension between honest advocacy and zealous advocacy.
129. Honesty is an explicit requirement of the Model Rules. MODEL RULES OF PROF'L CONDUCT pmbl. (2008).
130. See Matthew Reid Krell, Raising the Bar: Elite Advocacy in Supreme Court Public Interest Litigation, 34 J. LEGAL PROF. 275, 287 (2010).
131. sources cited supra note 42.
132. Kagan, supra note 13, at 10:17.
133. See Cordray & Cordray, supra note 6, at 1360.
134. 28 U.S.C. § 530D (2006).
135. RICHARD L. PACELLE, JR., BETWEEN LAW & POLITICS: THE SOLICITOR GENERAL AND THE STRUCTURING OF RACE, GENDER, AND REPRODUCTIVE RIGHTS LITIGATION 16 (2003).
136. quoting Seth Waxman, a Solicitor General under President Clinton, speaking about a somewhat different context.
137. Cf. PERRY A, supra note 15, at 221
138. "Fundamentally, the definition of 'certworthy' is tautological; a case is certworthy because four justices say it is certworthy.".
139. One scholar has noted the potential "separation of powers concerns" if the Solicitor General's cert. recommendation were allowed to stand in for a Justice's vote when the Court does not have a "full bench available."
140. Jonathan Remy Nash, The Majority That Wasn't: Stare Decisis, Majority Rule, and the Mischief of Quorum Requirements, 58 EMORY L.J. 831, 885 & n.189 (2009).
141. Cf. John O. McGinnis, Principle Versus Politics: The Solicitor General's Office in Constitutional and Bureaucratic Theory, 44 STAN. L. REV. 799, 802 (1992)
142. "[The Solicitor General] cannot merely echo the Court's precedents, but must project vigorously, albeit respectfully, the President's distinctive constitutional voice.".
143. A fourth possible reform, not explored here because it is external to the Office, is for Congress to grant agencies broader independent litigating authority so that they can petition for themselves when the Solicitor General declines to do so.
144. See generally FEC v. NRA Political Victory Fund, 513 U.S. 88 (1994)
145. Holding that the FEC does not have statutory authority to petition on its own behalf.
146. Kagan, supra note 13, at 10:35.