So you’ve taken your client’s case all the way to the Supreme Court and the justices have asked the solicitor general of the United States whether they should grant review. What are your chances of a nod in your favor?
Not bad, according to an unusual study of two of the high court’s most important “information-gathering” tools — a call for the views of the solicitor general, known as a CVSG, and a call for a response, or CFR, to a petition for certiorari. The Court granted briefing on the merits in 34 percent of cases in which it called for the views of the solicitor general, a 37-time increase above the grant rate for all petitions. And, the justices follow the recommendation of the solicitor general to grant or deny a case roughly 80 percent of the time, according to the study.
David Thompson, currently a clerk to Justice Antonin Scalia, and Melanie Wachtell, policy director for the nonprofit Tobin Project, are both Stanford Law graduates who participated in the law school’s Supreme Court clinic. “We decided we were interested in writing a paper, and we felt if we were going to embark on a long paper to be published in a legal journal, we wanted it to be something that really contributed,” recalled Wachtell.
Law professors are generally “leaps and bounds” ahead of law students in writing about nuances in the law, she added. “We felt an empirical analysis would be more fitting.” She and Thompson met with Thomas Goldstein, co-chair of the Supreme Court practice at Akin Gump Strauss Hauer & Feld, who also teaches in the Stanford clinic, and asked him for his “wish list” of questions about practicing in the high court. “Among other things he brought up, he said little empirical work had been done on CFRs and CVSGs,” said Wachtell. “We compiled this novel and extensive database and interviewed about a dozen Supreme Court specialists, asking those folks what were their most pressing, unanswered questions.”
And what did they discover about calls for the views of the solicitor general, which require a formal vote by the Court?
• The Court calls for the views of the SG in approximately 11 petitions each year, with the frequency of CVSGs increasing over the decade from 1994 to 2004.
• The overall grant rate increases from 0.9 percent to 34 percent following a CVSG from the Court. In other words, the Court is 37 times more likely to grant a petition following a CVSG. For petitions on the paid docket, the grant rate increases even more, to 42 percent; a paid petition is 47 times more likely to be granted following a CVSG.
• The Court follows the recommendation of the solicitor general 79.6 percent of the time, when that office recommends either a straight grant, deny, or grant/vacate/remand.
• Where the solicitor general recommends a merits outcome in his brief responding to a CVSG, litigators take heart: the Court’s ultimate decision on the merits is only loosely correlated with that recommendation.
• The Court calls for the views of the solicitor general most often in intellectual property cases, antitrust cases, ERISA cases and other matters involving complex regulatory regimes.
• The Court calls for the solicitor general’s views more often in December than in other months, in order to obtain a response in time to vote on certiorari by the end of the term in May and to calendar the case in time for the October sitting.
• The solicitor general takes, on average, about four and a half months to respond to the Court’s invitation. A disproportionate number of responses are filed in December and in May, likely to ensure that the cases are calendared by the end of the Term and for the following October sitting, respectively.
The two attorneys also studied what happens when a lawyer files a petition for review; his or her opponent does not respond, and the justices then call for a response. Any justice can direct the clerk of the Court to issue a CFR.
• The overall grant rate increases from 0.9 percent to 8.6 percent following a CFR from the Court. In other words, a petition is nine times more likely to be granted once the Court calls for a response. For a petition on the paid docket, the grant rate increases only four times; for a petition filed in forma pauperis, the grant rate increases 30 times.
• In 80.5 percent of petitions, a respondent waives his or her right to file a brief in opposition.
• When the solicitor general represents the respondent, and chooses to file a voluntary response brief, the grant rate is 26 times higher than in instances where the office opted to waive response. When an individual state is the respondent, the grant rate increases by a factor of about 16 when the state voluntarily files an opposition brief. For private respondents, the grant rate increases only by a factor of three.
“It might seem like a very esoteric and narrow question, but to people who practice before the Supreme Court, these two tools are very relevant to whether a case is granted cert and to a litigator’s decision whether to file a response or not, and other decisions on behalf of a client,” said Wachtell.
Akin Gump’s Goldstein agreed, saying, “The CFR and CVSG processes are such a mystery. Few practitioners deal with them regularly, and even those who do generally don’t know what to make of them. I think it’s particularly useful to know the correlation between the Court using those procedures and the prospect of a cert. grant.”
In the article (“An Empirical Analysis of Supreme Court Certiorari Petition Procedures: The Call for Response and the Call for the Views of the Solicitor General” (pdf)), Thompson and Wachtell created a dataset describing every cert petition filed in the Court from October Term ’01 through October Term ’04. The CFR data cover more than 31,000 petitions, with 30 different variables for each petition, containing nearly 1 million total points of data.
They also analyzed a CVSG dataset describing every petition in which the Court called for the views of the solicitor general from October Term ’92 through October Term ’04 — including the complete docket and an analysis of the solicitor general’s brief for all cases between OT ’97 and OT ’04.