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What would the solicitor general have us do? The Supreme Court has been asking that question more than ever lately. In the term just ended, the Court issued 28 CVSGs – calls for the views of the solicitor general – and in the term before that, it asked for 29, according to statistics from the office. Both numbers are significantly higher than usual; the requests usually hover in the upper teens or low twenties per term. The formal CVSG procedure dates back only to 1957, when the justices, before granting or denying review, began asking the SG’s office to state its views on select cases in which the government is not directly involved. It is an invitation that the SG never says no to. The ritual is one of several indicators of the special relationship between the Court and the SG, in which the justices rely on the solicitor general not only for advocacy but also for sound judgment – in this case, about which cases to add to their docket. As Justice Ruth Bader Ginsburg once put it, “When we call for the Solicitor’s views in a case in which the United States is not a party, the Solicitor acts as true friend of the Court.” So why have those calls come more often lately? Is it because justices are curious – like many other Court watchers have been – about possible changes in the government’s position that can come with the arrival of a new presidential administration? Not likely, say students of the Court’s docket and procedures. “My guess is that it has more to do with the change in personnel on the Court,” said Roy Englert Jr., partner in Robbins, Russell, Englert, Orseck, Untereiner & Sauber, himself a veteran of the SG’s office. Three of the last four appointees to the Supreme Court worked in the SG’s office, noted Englert – an apparent high-water mark for the office’s representation on the Supreme Court. Chief Justice John Roberts Jr. was principal deputy SG from 1989 to 1993, Samuel Alito Jr. was an assistant to the SG from 1981 to 1985, and Elena Kagan was the solicitor general from 2009 to 2010. The unwritten rule on the Court is that it takes the vote of four justices to request the SG’s views in a given case, so those alumni form a base that can be counted on to value the SG’s opinions. Englert adds that the fourth new justice, Sonia Sotomayor, even though she did not work in the SG’s office, is “presumably was more willing to listen to Roberts and Alito if they urged CVSGs, than the more senior justice she replaced,” namely David Souter. John Elwood, Vinson & Elkins’ Supreme Court expert, also asserts that “an unusually high number of new justices – four since 2005 – may particularly appreciate having the benefit of that office’s institutional knowledge and substantive expertise in sometimes complex areas of federal statutory and regulatory law.” Elwood, who also worked in the SG’s office, offered another possible explanation that relates to Roberts’ predecessor, the late chief justice William Rehnquist: “I would also not rule out the possibility that the very no-nonsense Chief Justice Rehnquist may have acted as a brake on frequent recourse to the office of the solicitor general.” Elwood also attributed the uptick in CVSGs to the changing mix of cases the Court is hearing, with emphasis in recent terms on complex regulatory disputes, intellectual property, immigration, bankruptcy, ERISA, qui tam and securities litigation, all of which have triggered CVSGs from a Court looking for more guidance. So what does the SG say when it is asked to give its opinion? Attuned to the Court’s high bar for granting review, the solicitor general recommends denying review in the vast majority of CVSG briefs, though its opinion is not always heeded. Last term, it recommended denying certiorari in 24 of the cases in which its views were sought; the Court granted five of them anyway. On the flip side, however, the Court seems to pay more attention; the SG recommended granting review in four cases last term; the Court did so in three, and the fourth is still pending. “Every SG quickly learns that, while the Court may ask for his or her views, this does not mean that the Court will follow them,” said former Solicitor General Gregory Garre in an interview earlier this summer with the Washington Legal Foundation’s Legal Pulse blog. Garre, now global chair of Latham & Watkins’ Supreme Court and appellate practice, pointed to the recent interplay between the SG and the Court in major federal pre-emption cases involving pharmaceutical companies and state tort litigation. Three terms ago, the Court asked for the solicitor general’s views in Wyeth v. Levine. The SG’s office was noncommittal about granting review, but supported federal pre-emption. The Court granted certiorari and ruled against federal pre-emption. In this year’s sequel pertaining to generic drugs, PLIVA Inc. v. Mensing, the Court again asked the solicitor general’s office for its views. This time, echoing the Wyeth ruling, the office recommended against granting review and said state suits were not pre-empted. The Court granted review, and this time ruled in favor of pre-emption. Said Garre, “The SG’s office must feel like it can’t get it right on drug act preemption.”   Tony Mauro can be contacted at [email protected].      

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