June 26, 2017

Calls for the views of the Solicitor General: An obscure but important part of Supreme Court practice

The Supreme Court receives between 7,000 and 8,000 petitions for certiorari a year, and it grants review in only about 80 of them. To warrant the Court’s review, a petition must cleanly present a question of national importance. With increasing frequency over the past 10 years, the Court has concluded that it should hear from the United States government before it decides whether to grant or deny certiorari. In recent Terms, the Court has called for the views of the Solicitor General (or “CVSG”) in about 25 petitions per Term, inviting the Solicitor General to file an amicus brief explaining the United States’ views on whether the case warrants the Court’s review.

Why the Solicitor General?

In many cases, knowing whether and how the United States’ interests are affected by a lower-court decision can help the Court decide whether a case is sufficiently important to warrant review. In a federal statutory case, for instance, the executive branch agency that administers the statute—and whose construction would be entitled to judicial deference—will be able to explain whether it agrees with the lower court’s construction and whether the decision implicates important government interests.

In addition, as the most frequent repeat litigant before the Court, the Solicitor General is very familiar with the Court’s standards for granting certiorari. The government is therefore well-placed to opine on whether an alleged circuit split is sufficiently well-developed to meet the Court’s normal threshold for granting certiorari or whether the petition suffers from any vehicle problems, such as failure to properly preserve the question presented.

Types of cases in which a CVSG is most likely

The areas of law in which the Court most frequently seeks the Solicitor General’s views are those in which the federal government possesses special expertise or particularly strong interests. For instance, cases involving Indian law issues are a frequent source of CVSGs, because the federal government is an expert in the federal treaties and statutes protecting Indian interests and has a strong interest in tribal sovereignty and self-determination. See, e.g., Dollar General Corp. v. Mississippi Band of Choctaw Indians, No. 13-1496 (presenting questions concerning tribal jurisdiction to adjudicate civil tort claims by tribal members against a nonmember corporation).

In the environmental law context, the Court will often call for the Solicitor General’s views if a federal agency such as the U.S. Environmental Protection Agency (EPA) is not already a party to the suit. For instance, the government recently filed a CVSG brief in an original-jurisdiction dispute between New Mexico and Colorado over whether Colorado is liable under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9607(a), for costs incurred by New Mexico in cleaning up certain mines, and whether Colorado has violated the Resource Conservation and Recovery Act. See Colorado v. New Mexico, No. 22O147. Another example is Decker v. Northwest Environmental Defense Center, which concerned EPA’s then-current industrial stormwater regulations. There, the Solicitor General informed the Court that the court of appeals had misconstrued an EPA regulation, but that the case did not merit review because EPA planned to amend the regulation.

What the Solicitor General does when the Court invites his views

When the Court calls for the views of the Solicitor General, it issues an order that states: “The Solicitor General is invited to file a brief in this case expressing the views of the United States.” Despite the genteel phrasing, the Solicitor General’s Office treats the “invitation” as an order and will always file a brief in response.

When the Solicitor General receives an invitation, the government embarks on a months-long process to determine both the government’s position on the merits and its recommendation on certiorari. The Office solicits the views of all the interested agencies and supervises the formulation of the government’s position through a series of memoranda and meetings. Often, a CVSG requires the government to develop a position on an issue it has not previously confronted, or to resolve disagreements among agencies. The Solicitor General acts as the arbiter of those disputes, attempting to craft a brief that protects the equities of all agencies to the extent possible.

Meeting with the parties

Soon after the Court issues its invitation, the Solicitor General’s Office will arrange back-to-back meetings with counsel for the parties. The meetings provide government counsel—attorneys in the Solicitor General’s Office as well as the interested agencies and the relevant divisions of the Justice Department—with an opportunity to explore both the merits and the appropriateness of Supreme Court review. In many ways, the meetings are reminiscent of moot courts, as the government attorneys will ask difficult questions to make sure they fully understand the case and its implications before committing the government to an official position.

From the parties’ perspective: Making the most of the CVSG

If you represent a party in a case in which the Court has issued a CVSG, you have an opportunity to make certiorari more or less likely by persuading the government to take your side. The primary opportunity to do so arises during the meeting with the government. Prepare for the meeting as though it were a moot court. You should be ready to discuss the merits, the case for or against certiorari, and the government’s interests in the case. In deciding what to emphasize, think about where the government is likely to come out on both certiorari and the merits. If, for instance, you think that the government is unlikely to agree with you on the merits, then you may want to focus on why the government should agree with you on certiorari. And vice versa.

The CVSG process will provide other benefits to the parties if the Court ultimately grants review. The government’s questioning of the parties, and the CVSG brief it ultimately files, may help each side refine its arguments in preparation for briefing the merits stage of the case. The opportunity to interact with the government at the CVSG stage may also provide important insight into the government’s thinking that can be helpful in anticipating and responding to the amicus brief that the government will file at the merits stage.

The future of CVSG practice

The Court’s CVSG practice is likely to stay steady or increase in the future. In the past few years, the number of CVSGs has held fairly steady at 18–25 per Term. Nobody’s Perfect, Not Even the SG (Bloomberg BNA, Sept. 15, 2015). In some subject areas, such as foreign relations (where the United States’ views carry particular weight) and patent law (where the federal circuit’s exclusive jurisdiction means there are no circuit splits to signal that an issue is important), the Court rarely grants certiorari without first inviting the Solicitor General’s views. There is no reason to think the Court might cut back on those practices.

If anything, CVSGs may become more important—and, therefore, more frequent—in the future. For reasons that remain unclear, the Court has found fewer suitable cases to grant each year. See, e.g., Adam Liptak, The Case of the Plummeting Supreme Court Docket, New York Times (Sept. 28, 2009). In the past few summers, the Court has been slow to grant cases for the following Term, leading to questions about whether the Court will end up filling its available argument slots. As it endeavors to fill the Term, the Court may be tempted to relax its standards slightly. When the Court is presented with such a petition, seeking the Solicitor General’s views may provide a critical check. The Solicitor General’s briefs provide the Court with assurance that the government has performed an in-depth analysis of the case. If that process does not turn up fatal vehicle problems, the Court can be assured that the case is an adequate (if not perfect) one in which to decide the issue. In filing CVSGs, then, the Solicitor General acts as a true friend of the Court, assisting the Court in managing its docket—and that role may increase in importance in the future.