Amicus Curiae or Amicus Praesidentis?* Reexamining the Role of the Solicitor General in Filing Amici

Article excerpt

There are limits to the impact that the president and political forces have in influencing the amicus position adopted by the solicitor general

The Office of the Solicitor General (OSG) shares a symbiotic relationship with the United States Supreme Court. The office and the Court have developed "a tradition of mutual trust and respect."1 As former Solicitor General Kenneth Starr noted, "There is a unique relationship between the two branches that is valued and treasured and is a factor that counsels care, caution, and effective lawyering."2 While analysts may dispute the reasons why,3 virtually everyone recognizes the excellence and success of the Office of the Solicitor General.4

The solicitor general's primary responsibilities to the Court are to screen petitions scrupulously to keep many off the Court's crowded docket and to prepare briefs of the highest quality. Former Solicitor General (SG) Wade McCree argued that "It is the duty of the Solicitor General to serve as a first-line gatekeeper for the Supreme Court and to say 'no' to many government officials who present plausible claims of legal errors in the lower courts."5 The SG also "focuses and directs the development of law," helping the justices to impose stability on doctrine." The OSG appears before the Court more than any other litigant, thus its attorneys are quite familiar with the predilections of individual justices and the Court.

Another important function of the solicitor general is informational. Oral arguments and written briefs are good places for justices to get information and signals.7 The Court, however, is bombarded with information. Litigants may fabricate or exaggerate circuit conflicts or misrepresent the impact of precedent.8 The SG seeks to provide the justices with accurate and balanced information and assure that the briefs maintain a high level of professionalism. In short, as James Cooper argued, the solicitor general "is a brand name" that insures quality.9

The SG decides which of the cases the government lost in the district courts and the courts of appeals should be appealed. The OSG also assumes full control over government cases appealed to the Supreme Court. Though these represent an impressive array of powers and give the solicitor general a major voice in the construction of judicial policy, the influence of the office extends even further. The SG often enters cases in which the government is not a party through an amicus curiae brief.10 This permits the solicitor general to influence the structure of doctrine and advocate a position even though the government is not involved in the particular case.11 Over time, the office has earned a high degree of credibility with the justices. One manifestation of that credibility is that the Court will, on a number of occasions, "Call for the Views of the Solicitor General" (CVSG). In these instances, the Court formally invites the SG to express its views on the case before it.

The significance of the Supreme Court as a policy maker, the use of litigation as a mechanism for influencing policy, and the sheer volume of government litigation magnify the potential influence of the solicitor general. That potential also exposes the office to a variety of different pressures. The solicitor general plays a critical role in translating the policies of the government, the president, and the executive branch (and they may not be the same thing) into litigation.

As a presidential appointee, the SG might be expected to carry water for the administration on the important issues of the day. At the same time, legislation often needs to be interpreted in court and the SG would be expected to argue the position from Congress' perspective. Many of the cases come from an executive agency that sets policy goals that the SG would be expected to argue faithfully in Court. The volume of litigation and the fact that the office argues on behalf of the same client in every case mean that the SG must pay close attention to the Supreme Court. …