X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Whenever the Supreme Court invites the solicitor general’s office to express the government’s views on a pending case, it is a reminder of the important role the SG plays at the high court. Rarely, if ever, does the Court reach out to any other law office for its opinion on whether or not it should grant review in a case. And most of the time, when asked, the SG’s advice carries great weight: In the last three terms, the Court has followed the SG’s invited recommendation 74 percent of the time. But these days, the special bond between the office and the Court appears stronger than ever. The Court has asked Solicitor General Theodore Olson for his views in an unusually high number of cases in which the government was not already involved — 23 so far this term — a sharply higher number than the recent average of 16 per term. If past patterns hold, as many as a half-dozen more invitations could come before the end of the term. Supreme Court practitioners are abuzz about the substantial increase in requests, which can delay the Court’s disposition of a case for months. Each seems to have a different theory about the reasons behind the rise. Some see it as a sign of the Court’s high regard for Olson, who successfully argued Bush v. Gore in 2000 on behalf of Republicans. Some see it as a sign of the Court’s greater care in screening cases. Others find it troubling, concerned that the Court has become overly dependent on the government. Whatever the reason, lawyers in the already overbooked Office of the Solicitor General say the rise in what are called CVSGs — as in, calls for the views of the solicitor general — has had a palpable impact on their workload. Olson himself declined comment, but one senior attorney in the office says, “We’ve been so swamped with briefs and arguments this term, it’s been hard to respond to all these CVSGs with a sense of urgency.” The office’s 20 lawyers argued in 63 Supreme Court cases this term, in addition to writing briefs in dozens more cases and handling countless other lower appellate court matters. A special effort is under way this week to complete all of the term’s invited briefs by the end of May, according to sources in the office. The goal is to give the Court the chance to dispose of the cases before its term ends in late June or early July. Although there is no written rule, it is believed that the vote of three justices is needed to ask for the SG’s views, one fewer than is needed to grant review. For that reason, an invitation is sometimes seen as a sign that three justices who want the Court to grant review are looking for a powerful ally to help them win a fourth vote. And although framed as invitations, CVSGs are included on the list of orders issued by the Court. When the SG files his brief in reply, he uses the odd formulation that it is being “submitted in response to the order of this Court inviting the Solicitor General to express the views of the United States.” Indeed, they are more like orders than invitations: They are not to be declined. But no firm deadline is established, and sometimes the SG’s office takes months to reply. In one high-profile pending cert petition, American Coalition of Life Activists v. Planned Parenthood, No. 02-563, the Court asked for the SG’s views last December. Five months later, the SG has still not filed its views on whether the Court should take up the so-called Nuremberg Files case, in which operators of a virulently anti-abortion Web site are challenging a $110 million racketeering verdict. Often, the delay is a function of hard deadlines taking higher priority than response to the Court’s invitations. Also, the office has to come up to speed since, by their nature, the Court’s CVSGs come in cases in which the government was not previously involved. “We have to drop everything and start from scratch,” says one lawyer in the office. Usually the case involves an issue in which some agency of the federal government has relevant experience or expertise, but sometimes the federal connection is hard to discern. The Nuremberg Files case itself, in the view of some, fits that category. But delay can also occur because an invitation forces the government to study and take a stance on an issue that it would just as soon have avoided. Factions from all parts of the federal government and the private sector are called in, and intense lobbying often ensues. “There are times when you very much hope to be asked. It can be an opportunity,” says Reagan administration Solicitor General Charles Fried, now a professor at Harvard Law School. “But sometimes you very much hope you won’t be asked.” A case in point got Fried in hot water with President Ronald Reagan and his conservative base in 1988. Fried had hoped to duck Communications Workers v. Beck, which posed the contentious question of whether workers’ union dues could be used for political campaigns with which a dues-payer might disagree. But the Court invited Fried to give his views — not an implausible request, given that the National Labor Relations Board administered the relevant law in the area. After heavy pressure from top White House officials and from right-to-work advocates, Fried wrote in his book Order & Law, “I had to face the music.” His brief sided with the union, taking the position that neither the Constitution nor the National Labor Relations Act barred the union from using Harry Beck’s dues for political campaigns. “All hell broke loose,” Fried recalls, and Attorney General Edwin Meese III even held a meeting to discuss whether the brief should be withdrawn. It was not, and ironically, the Court ended up ruling 6-3 against Fried’s view. But most of the time, Fried says, “when they ask you for your view, you know it is going to be taken seriously.” Former Clinton administration Acting Solicitor General Walter Dellinger thinks the marked increase in invitations from the Court is a sign that “the Court is gaining increasing respect for the view of the solicitor general. And that is a compliment to Ted Olson and to [Deputy Solicitor General] Paul Clement.” Others have also speculated that the current, mainly conservative, Supreme Court tends to ask for the views of Republican SGs more than it has from Democrats. But a spot-check of the statistics doesn’t seem to bear that out. A Lexis search indicates that the Court asked for the views of the first Reagan solicitor general, Rex Lee, 16 times in the 1982-83 term — the same number of times that Clinton administration Solicitor General Seth Waxman was asked in the 2000-01 term. There have been occasional dips, including the 1995-96 term, when Clinton Solicitor General Drew Days III fielded only nine invitations from the Court. One sign of the increasing influence of the solicitor general’s invited views can be found in the appendix to a brief filed in Micrel v. Linear Technology Corp. , No. 02-39, a patent case pending at the Supreme Court. The Court had asked the solicitor general for his views, and he recommended against granting review in the case. As if to remind the Court that it need not follow the SG’s recommendation, Micrel’s lawyer Robert Morrill, a partner at Sidley Austin Brown & Wood’s San Francisco office, listed 14 cases in the last few years in which the Court did not do what the SG suggested. “Here, as in many cases,” Morrill told the Court, “the principal value of the solicitor general’s recommendation is thus the context it provides and the government’s view of the merits, rather than its ultimate recommendation.” In response, lawyers for Linear Technology filed another brief asserting that the Court did heed the SG’s recommendation in 24 of 36 invited briefs over the last three terms. The brief was filed by Norman Beamer of the Palo Alto, Calif., office of Fish & Neave. Some high court advocates see the trend as part of the Court’s apparent effort over recent years to reduce its docket in part by weeding out cases that are procedurally flawed or do not present an issue squarely. The Court, under this theory, views the solicitor general’s office as particularly adept at finding imperfections in pending cases. “The justices just seem to be thinking of that option more and more,” says Court practitioner Roy Englert Jr., “as a way to protect themselves from what they most dread — having to spend time on a case that isn’t really worth their time.” Englert, who spent three years in the solicitor general’s office, is a partner at D.C.’s Robbins, Russell, Englert, Orseck & Untereiner. Frequent high court advocate Carter Phillips, managing partner of Sidley Austin’s D.C. office, offers a related explanation for the increase in CVSGs. When he served as a law clerk to the late Chief Justice Warren Burger, Phillips recalls, “CVSGs were a pretty good device when you had a hard time figuring out what a case was all about. [The view was,] ‘Let the SG sort it out and tell you whether the Court should take the case.’ When times got busy, I remember seeing a lot more CVSGs.” A more recent former law clerk agrees, viewing the increase in CVSGs as one more manifestation of the growing power of law clerks, who are usually the first to recommend to their justice that they seek the SG’s views. “It’s a refuge for timid law clerks,” says this high court advocate. “If they can’t decide whether to recommend that the Court grant a case, they suggest shipping it over to the SG, and the justices say, ‘Why not?’ “

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.