"We're Your Government and We're Here to Help": Obtaining Amicus Support from the Federal Government in Supreme Court Cases

Article excerpt

Litigating in the United States Supreme Court can be an exciting, yet intimidating, experience. The rarity with which such cases arise, combined with the intellectual challenge of briefing and arguing issues of great significance to the law before a nine-member panel of highly intelligent, rigorously well-prepared, actively engaged, and analytically demanding jurists can be a highlight of a lawyer's career. (1) At the same time, the Court's unique procedures, the dauntingly high expectations of the Justices, and the particularized demands of judicial decisionmaking at the nationwide level can leave even experienced appellate attorneys at sea.

Accordingly, as is true for so many adventures in life, it might be better to travel on your Supreme Court voyage with an experienced guide. And there is no one better to navigate the Court with than the Solicitor General of the United States. Obtaining amicus curiae support from the Solicitor General can be of significant benefit in both obtaining or avoiding Supreme Court review in the first instance, and preparing a case and framing legal arguments for plenary review after certiorari is granted. The Solicitor General, after all, is a repeat player before the Supreme Court--appearing in approximately seventy to eighty percent of the Supreme Court's cases every Term--and her arguments speak to the Court with the voice of the coordinate branches of the federal government. (2) As a result, having the Solicitor General appear on your side of a case can ensure the most comprehensive presentation of the arguments in your favor, and it can enhance your prospects for success because of the weight and respect that the view of the United States government is generally accorded. For that reason, it is important for Supreme Court counsel to understand what it takes to obtain the Solicitor General's support in a case.

I. THE SOLICITOR WHAT?

By way of background, the Solicitor General is an Executive Branch officer within the United States Department of Justice who is charged with, among other things, representing the interests of the United States before the Supreme Court. While the Solicitor General is appointed by the President and confirmed by the Senate, her charge to represent the interests of the United States as a whole gives her a unique degree of independence. (4) The Solicitor General heads a small staff of approximately twenty lawyers in the Office (four Deputy Solicitors General and roughly sixteen Assistants to the Solicitor General) who assist her in the formulation of legal positions and the drafting of briefs and certiorari-stage filings for Supreme Court cases. (5) With the exception of the Principal Deputy Solicitor General, who is chosen by the Solicitor General, the lawyers in the Office are career government lawyers who are all schooled in the intricacies and idiosyncrasies of Supreme Court practice, as well as in the task of developing and defending the institutional interests of the United States government in litigation. (6)

II. THE SOLICITOR GENERAL'S ROLE AT THE CERTIORARI STAGE

A. An Invitation That Cannot Be Refused

When a petition for a writ of certiorari is pending in the Supreme Court, the petitioner hopes against hope to receive one of those rare orders informing her that: "The petition for a writ of certiorari is granted." (7) The respondent opposing certiorari, of course, hopes to see the much more commonplace order that: "The petition for a writ of certiorari is denied." But there is a third option. After the case is considered by the Court (that is, after the case is "conferenced"), the parties in approximately fifteen cases a year receive an order reciting that "The Solicitor General is invited to file a brief in this case expressing the views of the United States." (8) Those orders are known within the Solicitor General's Office as "invitations," and commonly referred to outside that Office as "CVSGs" ("Calls for the View of the Solicitor General"). …