March 9, 2020

"A comprehensive new study from two law students at Yale shows that routinely granting argument time to the solicitor general is a recent and curious phenomenon."

"The study asks the provocative question of whether giving the solicitor general this preferred position makes any sense. 'What we’re asking for is really for the court just to apply the same standard to all amici, whether they’re from the solicitor general’s office or not,' said Darcy Covert, who conducted the study with A.J. Wang. 'In cases where the connection to the federal government is particularly tenuous and the motivation for the solicitor general entering the case may be ideological, in those cases he certainly shouldn’t be getting oral arguments.'... Starting in 1988, though, the office’s success rate started to rise, reaching almost 100 percent. From the beginning of the term that started in 2010 through the end of the one that began in 2017, the court granted just eight of 26 motions for argument time from amici other than the solicitor general, the study found. During that same time, the court granted 252 of 253 such motions from the solicitor general."

From "The Supreme Court Has a Special ‘Friend’: The Justice Department/A new study questions the court’s practice of automatically granting argument time to the solicitor general as a 'friend of the court'" by Adam Liptak (NYT).

ADDED: The occasion for paying attention to this topic seems to be the Solicitor General's argument in an abortion case last week. The NYT article begins with a statement about that case — there were 70 amici who submitted briefs in that case but only the Solicitor General got to make an oral argument to the Justices (who may delegate reading these non-party briefs to their law clerks). Later, the article notes that the federal interest in this case about the constitutionality of a state law is "not obvious." The SG only offered to provide "the federal perspective":
The motion noted that the solicitor general’s office had taken part in arguments at the last big abortion case, during the Obama administration in 2016, but it neglected to say that it had supported abortion rights in that case. In last week’s argument, Jeffrey B. Wall, a deputy solicitor general, argued in favor of a state law restricting abortions. If he was offering “the federal perspective,” that perspective had shifted with a change in administrations.
And, I suspect, the NYT perspective on routinely granting the SG oral argument time has also shifted.

It seems to me that it's much better to routinely grant the SG's request than to base the decision on which side the SG supports.

28 comments:

Fernandistein said...

he certainly shouldn’t be getting oral

I'm editing it for dementertainment purposes only.

A.J. Wang ... started to rise, reaching almost 100 percent.

gilbar said...

this is Only a problem, when the solicitor general is from a republican administration?
i mean, RIGHT?

Nonapod said...

I wonder why there's suddenly all this concern about the executive branch perhaps unduly influencing decisions made by the judicial branch? It's a mystery.

Michael K said...

"Orange Man Bad" and his SG is too.

Dave Begley said...

gilbar wins.

Dave Begley said...

Why wasn't this study conducted by Yale completed when Harvard Law alum Obama was POTUS?

Kevin said...

The occasion for paying attention to this topic seems to be the Solicitor General's argument in an abortion case last week.

Bingo!

Yancey Ward said...

Yes, this is another "problem" that will suddenly be a non-problem when the solicitor general is a Democrat.

Kevin said...

Later, the article notes that the federal interest in this case about the constitutionality of a state law is "not obvious."

Democrats said the same thing about slavery.

Bay Area Guy said...

What % of the American public can name who the current Solicitor General is? I'd say 5% at best.

How about naming any famous past Solicitor General?

Bork
Ken Starr
Ted Olson

rehajm said...

t seems to me that it's much better to routinely grant the SG's request than to base the decision on which side the SG supports.
In case you need evidence Ann is not a Democrat...

BarrySanders20 said...
This comment has been removed by the author.
Ken B said...

Ann has preemptively spanked Hardin.

BarrySanders20 said...

It's similar to how perspectives change about the use of executive orders. W's use was abuse of power and he should have been convicted of crimes, but Obama was heroic in using them to escape the shackles of reactionary right, and Trump's use is proof of his dictatorial nature and more reason why he should be removed.

Mal said...

Fascinating. Could it be because after 1988, the stature of people holding the position of Solicitor General has typically been much lower than before? Maybe the Supreme Court felt they were getting more "professional" help from a post-1988 Solicitor General who wasn't looking to use the office simply as a launching vehicle to higher office?

Before 1988, we had such giants as future President and Chief Justice Taft as SG. Before 1988, we had giants like Charles Evans Hughes as SG. Future Supreme Court justices like Stanley Reed, Robert Jackson, Thurgood Marshall, and supreme court nominee Bork as SG prior to 1988. Not to mention future Nuremberg judge Francis Biddle as SG prior to 1988.

After 1988, the year this Yale study says things changes, the only SG that went on to something higher was Elana Kagan. And let's be honest, though she is a very good legal scholar, and by all accounts a decent supreme court justice, she was only SG to get higher office. Which is why she only argued 6 cases at the Supreme Court, including her first - which she lost spectacularly - Citizen's United.

So it seem, in a post-1988 era, when the SG is someone professional rather than someone using it as a launching platform for something better, the Court thinks, hey, why not get the opinion of this "tenth justice."

What harm?

Just my 2 cents.

Francisco D said...

I am shocked, absolutely shocked that the NYT and Yale Law is engaging in hypocrisy.

Captain Renault could not be reached for comment.

Ken B said...

There is an obvious value in having the SG’s understanding dealt with in the court’s opinion. Hence it makes sense to be clear on what that understanding is.

tim maguire said...

I'm curious as to the constitutional basis for giving one non-party pride of place over other non-parties.

Beach Brutus said...

I've never been comfortable with amici anyway. The role of the judiciary is to decide "cases and controversies" between litigants with a real life stake in the outcome. Allowing strangers to the litigation to have a voice is inviting what amounts to a form of ex parte communication to influence the outcome. That's just not right.

iowan2 said...

Isn't this a political hit job on SCOTUS? The decision rests with the court. If something is askew, the only place to put the blame is on the Court.
Why are these students attacking the integrity of SCOTUS Justices? The attack is evidence of ignorance of the law in general and SCOTUS specifically. To attack them is a huge violation of norms, and history. I demand we look into the students background to see if they have abused Sharpies in the past, eat two scoops of ice cream, or associate with outsized salt and pepper shakers. All signs of "bad".

narayanan said...

Beach Brutus said...

I've never been comfortable with amici anyway. The role of the judiciary is to decide "cases and controversies" between litigants with a real life stake in the outcome. Allowing strangers to the litigation to have a voice is inviting what amounts to a form of ex parte communication to influence the outcome. That's just not right.
______________++++++++++++++
Do class actions ever make it to SC?
Can SC invalidate Class created by lower courts?
Are not amici "putative class members"

Char Char Binks said...

1988 hasn't been recent since 1996.

Martin said...

Funny, how this comes up now.

And by "funny" I do not mean ha ha ha.

Roger Sweeny said...

The Solicitor General is an appointee of the President, who was elected. To the extent that "the Supreme Court follows the election returns", it is useful to know what the President's administration thinks. But lets not pretend the Court is interpreting the Constitution.

JAORE said...

How many things were viewed as benign, or intentionally overlooked until the HORROR of discovering Trump was doing the same thing?

Of course it was usually presented as Trump was doing some "new and improved" horror.

Old horrors fade like a Death Valley snow in July.

Birkel said...

Lots of "studies" will now offer suggestions for the conservative majority to follow. The pace of such suggestions will increase as RBG and Breyer are replaced on the Court.

Hey Leftist Collectivists, get better ideas that people prefer. M'kay?

Bay Area Guy said...

This nerdy fellow - Paul Clement -- was a killer Solicitor General.

He should be on SCOTUS.

The Godfather said...

“Ex Parte” does not mean “ not a party”. ALL amici curiae are by definition non-parties.

The SG’s office specializes in appellate, and particularly, Supreme Court litigation. It should come as no surprise that the Supremes might find it useful to hear what the SG thinks. Other amici, not so much.