The Solicitor General of the United States: Tenth Justice or Zealous Advocate?

Adam D. Chandler

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The federal government loses hundreds of cases in the federal courts of appeals each year, but the Solicitor General selects only a handful of those cases—just fifteen or so—to petition the Supreme Court to review. Acting as the final “decider” on the overwhelming majority of federal appeals, the Solicitor General has a vast and underscrutinized amount of discretion over the federal government’s legal agenda. This post argues that the Solicitor General should behave more zealously in his advocacy at the petition stage.


I. The Solicitor General’s Cert. Practice

The Solicitor General petitions for review in a small fraction of the cases that the government loses in the courts of appeals. To determine which cases make the cut, the Solicitor General adopts the Supreme Court’s standard for “certworthiness,” a standard that emphasizes two criteria: a split of authority in the lower courts and the underlying legal issue’s importance. What makes an issue important is, of course, subjective. In practice, the Solicitor General observes the Court’s cert. grants to align his own judgments of “importance” with the Court’s.

While the Solicitor General has always been stingy in pursuing cert. grants, over the last two decades he has curtailed his requests for review even further. Between October Term 1985 and October Term 1988, the Solicitor General filed an average of fifty cert. petitions per Term. That figure steadily declined in the subsequent twenty years. Most recently, between October Term 2005 and October Term 2008, the Solicitor General filed an average of just sixteen cert. petitions per Term. Not coincidentally, the Court’s caseload has shrunk by half over the same time period.


II. The Solicitor General as Zealous Petitioner Rather than Tenth Justice

The remainder of this post argues that the Solicitor General should behave more like a lawyer and less like a Justice.


A. The Argument for More Zealous Petitioning

The Model Rules of Professional Conduct is a guide for all lawyers, including government lawyers. One hallmark of effective advocacy, according to the Model Rules, is zeal. It would serve the Solicitor General—and those he represents—well if he remembers the ideal of the zealous advocate imagined by the Model Rules. He must remain as mindful of the interests he represents as he does of the Court’s perspectives, if not more so.

Twenty-five years ago, the Solicitor General filed petitions in only about one-sixth of the cases in which petitions were sought by cabinet heads, U.S. attorneys, assistant attorneys general, and general counsels from departments and agencies. Now that the Solicitor General files fewer than a third as many petitions as he did then, the ranks of disappointed “clients” have swollen further. In addition, when the Solicitor General is not acting on behalf of a department or agency, he frequently decides not to appeal monetary awards against the government, as well as losses in criminal cases, tax cases, Bivens cases, and cases spanning the diversity of the federal government’s litigating activity. In total, the Solicitor General declines to pursue a vast array of federal interests in the Supreme Court, and this post finds no justifications for that practice that can be called zealous representation.

Crucially, it is not at all clear that the Supreme Court endorses the Solicitor General’s strict screening. Indeed, Margaret Meriwether Cordray and Richard Cordray find strong evidence that “the Solicitor General’s pullback [from filing cert. petitions] is now thwarting the Court’s desire to hear more cases involving the federal government.”1 The Court has responded by devoting more of its docket to cases in which the government is the respondent, a category of cases that the government is more likely to lose. Accordingly, the Cordrays observe, “the Solicitor General’s highly restrictive petitioning decisions are opening the door to more of the least desirable cases for the federal government.” That is, the current strategy is backfiring.

To be sure, there are strategic and prudential reasons—plainly within the realm of smart and zealous advocacy—for the Solicitor General not to petition in certain cases. If the Solicitor General determines that the monetary stakes of a dispute are less than the resources required to reverse the prior ruling, he is justified to question whether it is in the public’s interest to pursue an appeal. (It may still be, for precedential reasons.) Also, adverse Supreme Court precedent impacts the government more frequently than it impacts any other litigant, so the Solicitor General has a special interest in limiting its spread. In most circumstances, that interest will require him to keep “sure losers” away from the Court; he is acting as an advocate, and a good one, when he does so. Finally, it is permissible and wise advocacy when the Solicitor General strategically selects a particular case out of several on the same issue to take to the Supreme Court. That strategy will sometimes require him to decline to petition in cases with weaker facts or procedural postures as he waits for a more desirable vehicle to develop.

All three exceptions are valid practices under this post’s conception of the Solicitor General’s role, and they may rule out some significant percentage of potential cert. vehicles. Still, they cannot explain all of the cases the government currently declines to petition. After all, there is no reason to think these exceptions are any more common today as compared to twenty-five years ago. Moreover, these justifications are not the ones offered to explain why the Solicitor General’s Office petitions so infrequently.


B. The Office’s Defense of Its Cert. Practice

When asked why the Solicitor General’s Office does not file more cert. petitions, representatives of the Office do not cite strategic reasons like those just mentioned. Instead, they make two arguments: (1) the Solicitor General’s credibility with the Court is paramount, and he risks that credibility by filing more cert. petitions; and (2) the lawyers in the Office have only so much time, and the Solicitor General must make exacting choices about which priorities to pursue.


1.   Credibility

The predominant justification given for the Solicitor General’s high bar for seeking cert. is the need for the Solicitor General to maintain credibility with the Supreme Court. It is true that the Solicitor General is the consummate repeat player at the Court, and he must guard his reputation carefully. But the extent to which that reputation is protected by seeking cert. narrowly has been exaggerated. No one suggests that the Solicitor General was any less credible in the 1980s when he was filing three times as many petitions as he is today. Indeed, his grant rate then is commensurate with the current rate. Moreover, an empirical study of amicus filings found that the Solicitor General’s Office increased its amicus filings without decreasing the Solicitor General’s prestige or success before the Court.2

The Solicitor General could—without risking the reliability of his recommendations—write cert. petitions that simply do not allege a circuit split when there is not one, and that do not pretend that issues are equally important when they are not. He would still be asking for review, but would also be honest about his judgment of each case’s qualifications for a cert. grant. There is even reason to think that the Court would welcome the additional cert. petitions. As this post discussed earlier, the Court wants to hear more cases involving the federal government. The Court may also desire more latitude to set its own agenda by choosing from a wider menu of government cases. Or it may think that, as a matter of process, it is more appropriate for the Court, rather than an executive official, to make a final judgment on many of the cases. In any event, the Solicitor General’s current practice may actually be jeopardizing the reputation of the Office, as the Court must look elsewhere to find the cases it seeks to hear.


2. Scarce Resources

Another defense of the Solicitor General’s current cert. practices is that the Office’s resources are finite and not every possible cert. petition can be written. That defense is belied by the fact that the Solicitor General’s staff today is the same size it was in the mid-1980s, when the Office was filing three times as many petitions. More fundamentally, it is the duty of the Solicitor General to pursue zealously his client’s interest, so it must also be the duty of the Solicitor General to request additional funding for the Office if it does not have the capacity to perform sufficient advocacy. Furthermore, the Solicitor General’s Office rarely writes first drafts of anything it files, and it would be able to diffuse much of the extra labor throughout the various components of the Department of Justice. Filing cert. petitions is a core function and responsibility of the Office, and a Solicitor General heeding this post’s recommendations would necessarily find a way to get the job done.


C. Reforming the Office’s Cert. Practice

There are at least three related ways to reimagine the Solicitor General’s current practices to make him a more zealous participant at the cert. stage. First, the Solicitor General’s default position could be to petition the Court to review every case the government loses in the courts of appeals, unless he states his reason for not doing so. Indeed, that default is the general practice of the Office when a court of appeals declares a federal statute unconstitutional. Defending acts of Congress is a chief responsibility of the Solicitor General, but it is not inevitable that other matters, such as large damage awards or regulatory infractions, should be treated with less urgency and transparency as a matter of course. If the default were switched, the Solicitor General may still petition those matters less frequently, but he should have to justify briefly (and perhaps not even publicly) why he will not pursue the government’s interest in those cases. By articulating to his constituencies the reasons he declines to pursue their interests, the Solicitor General will become more solicitous of those constituencies.

Second, the Solicitor General could adopt a different, more lenient standard for deciding when to petition. Perhaps the primary question the Solicitor General should ask is, “Can this government interest be defended in Court?” Asking whether a particular position is defensible is a much more permissive and germane inquiry for a government attorney than whether the Supreme Court will grant cert. to review that issue. In fact, the “defendability” inquiry is similar to the standard the Solicitor General uses when deciding whether to defend a federal statute whose constitutionality he questions.

Third, even if the Solicitor General declines to adopt those specific prescriptions, he should nevertheless abandon his reliance on a judicial standard for determining when to pursue a cert. grant. Only the Supreme Court can determine what is certworthy. The Solicitor General must guess—inevitably imperfectly—thereby abandoning some percentage of cases that the Justices would have reviewed if presented to them. What’s more, the instantiation of a judicial standard within the executive advocacy context is problematic. The Solicitor General, as an advocate, should view the Court’s cert. criteria as a challenge to overcome. The Solicitor General’s cert. calculation should involve purely executive interests—for example, the public fisc or the administrability of a regulation—and the judicial standard for certworthiness should present something analytically distinct, an occasion for legal strategy and argument. Pushing hard to clear a formidable judicial hurdle is a routine part of an advocate’s job, and it should be more routine in the Solicitor General’s Office.


Conclusion

The Solicitor General is excessively restrictive in seeking cert. and is growing ever more so. This litigation strategy does not amount to zealous advocacy of the interests the Solicitor General represents.

Elena Kagan appeared to grasp the import of this argument soon after she was confirmed as President Obama’s first Solicitor General. Speaking at the Ninth Circuit Judicial Conference, she reflected on the Solicitor General’s consistently high grant rate for its cert. petitions:

Somebody said to me recently, “Maybe those figures [grant rates of approximately 70%] are too high.” . . . . [T]here’s an interesting question there [whether the Solicitor General’s office is filing enough cert. petitions]. I used to be a big fan in my old job as Dean of saying that “if you don’t fail sometimes, it means you’re not trying to do enough things.” And there is a point there.3

Indeed there is.

* * *

For a supplementary critique of the Solicitor General’s cert. strategy, please see my recent post at the Just Enrichment blog: “True Friends Don’t Need Invitations: The Solicitor General as Amicus.”

Acknowledgments:

Copyright © 2011 The Yale Law Journal Company, Inc.

Adam D. Chandler is a 2011 graduate of Yale Law School. He received a Master of Science degree from University of Oxford in 2008 and a Bachelor of Science degree from Duke University in 2006.

This Legal Workshop article is based on the following comment: Adam D. Chandler, Comment, The Solicitor General of the United States: Tenth Justice or Zealous Advocate?, 121 YALE L.J. 725 (2011).

  1. Margaret Meriwether Cordray & Richard Cordray, The Solicitor General’s Changing Role in Supreme Court Litigation, 51 B.C. L. REV. 1323, 1346 (2010).
  2. James L. Cooper, The Solicitor General and the Evolution of Activism, 65 IND. L.J. 675, 694-95 (1990).
  3. Solicitor Gen. Elena Kagan, Remarks at the Ninth Circuit Judicial Conference, at 10:35 (July 23, 2009), available at http://www.ce9.uscourts.gov/video/Kagan_web_full.wmv.

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