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

Millett, Patricia A., Journal of Appellate Practice and Process

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"). The concurrence of four Justices is needed before the Solicitor General's views will be requested in a case. (9)

CVSGs are a unique feature of Supreme Court practice, and they underscore the special position of the Solicitor General in Supreme Court litigation. The Court is seeking the views of a non-party, not on the merits of the case, but on whether the Court should exercise its discretionary certiorari jurisdiction to hear the case at all. (10) Moreover, the Solicitor General is the almost-exclusive recipient of such extraordinary "invitations." (11)

Why would the Court issue such an invitation? Surely the Court itself is fully equipped to apply its own traditional criteria for granting certiorari. (12) The Supreme Court's rules offer no insight on what motivates the Court's decision to seek the Solicitor General's views. Indeed, the Court's rules do not mention the practice at all. The answer lies, instead, in tracking the Court's practice over time.

Most commonly, when the Court invites the Solicitor General's views, the question presented for review involves the interpretation and application of a federal statutory or regulatory scheme that a federal agency administers. In such cases, the parties' views on the impact and reach of the lower court's ruling and its implications for the administration of federal law are likely to be diametrically opposed. The petitioner will no doubt insist (to spark the Court's interest in certiorari review) that the statute or regulatory scheme has been rendered nonfunctional and that important federal programs have now been paralyzed. Correspondingly, the respondent will insist that the ruling has no discernible impact beyond the unique and infrequently recurring facts of the specific case. In the face of such arguments, the objective view of the Solicitor General on the impact of the court of appeals' ruling on what is, after all, the federal government's own statutory or regulatory program can help the Justices gauge more accurately whether the question presented has the type of wide-ranging consequence that merits Supreme Court review. (13) The Solicitor General is also uniquely positioned to explain whether legislative or regulatory amendments--or other administrative measures that might independently resolve any problem created by the lower court's ruling--are planned, thereby making Supreme Court review arguably unnecessary. (14) In addition, the Court may seek the views of the Solicitor General when the case implicates an international treaty, international law, or some other aspect of foreign relations, about which the political branches have particular expertise. (15)

Calls for the views of the Solicitor General are exceptional not only in their function and purpose, but also in their processing. They typically come with no Court-imposed deadline for filing by the Solicitor General. (16) That distinctive act of inter-branch comity apparently reflects the Supreme Court's recognition of the practical challenges imposed by a request that the Executive Branch suddenly immerse itself in a case to which it is not a party and with which it may not have had any prior affiliation, and then formulate an official governmental position on both the merits and the certworthiness of what is, almost invariably, an important, complex, and unanswered question of federal law.

Parties to a case in which a CVSG is issued need not worry, however, that their cases will be left wasting away while the Solicitor General tends to other business. The Solicitor General's Office strives to …

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Publication information: Article title: "We're Your Government and We're Here to Help": Obtaining Amicus Support from the Federal Government in Supreme Court Cases. Contributors: Millett, Patricia A. - Author. Journal title: Journal of Appellate Practice and Process. Volume: 10. Issue: 1 Publication date: Spring 2008. Page number: 209+. © 2007 University of Arkansas at Little Rock William H. Bowen School of Law. COPYRIGHT 2008 Gale Group.

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