Individual Justices and the Solicitor General: The Amicus Curiae Cases, 1953-2000

By Deen, Rebecca E.; Ignagni, Joseph et al. | Judicature, September/October 2005 | Go to article overview

Individual Justices and the Solicitor General: The Amicus Curiae Cases, 1953-2000


Deen, Rebecca E., Ignagni, Joseph, Meernik, James, Judicature


Understanding the relationships among the branches of the federal government is critical to understanding our political system. Scholars have studied how those who occupy positions of power influence the actions of decision makers in the other branches,1 but there is one nexus point in our governmental system where the lines of responsibility are blurred and the nature of influence more difficult to ascertain: the solicitor general.

As the federal government's chief attorney before the Supreme Court, the solicitor general must walk a delicate line between representing the interests of the president and maintaining legal and political credibility with the nine justices. The solicitor general advocates the president's legal and policy preferences, while at the same time striving to provide information to the justices in something like an advisory capacity to aid in their deliberations. Yet, while an increasing amount of research has analyzed the relationship between the Court's decision and the stance of the solicitor general, almost no work has looked at the voting patterns of individual justices in relation to the solicitor general's legal positions.2

The goal of this article is to analyze the voting patterns of individual justices to determine the extent to which their positions on amicus cases brought by solicitors general are influenced by the ideological position advocated (liberal versus conservative), the policy area at issue in the case, and the president they represent. The purpose is not to develop a grand theory of solicitor general success vis à vis individual justices, but rather to inform the reader when and where this success occurs. This is a necessary step in the development of a broader theory of executive branch influence before the Supreme Court. In particular, this article attempts to advance our knowledge about this relationship by examining cases that included an amicus cunae brief filed by the solicitor general's office between 1953 and 2000.

The S. G. and decision making

The solicitor general almost exclusively represents the executive branch and federal government before the Supreme Court. The solicitor general is appointed by the president, who "can remove solicitors who do not live up to expectations"3-including advancing the president's agenda in the legal system.1

Pacelle's recent work provides clear exposition concerning the difficult position in which the solicitor general's office finds itself in attempting to balance competing interests and constituencies. However, he also makes the point that "(v)oluntary amid briefs provide the best opportunity to further executive designs."5 Yates writes that "(s)ince the Solicitor General's office can take either side of a given Supreme Court dispute as an amicus participant, it is in this litigation role that the executive branch, through the Solicitor General's office, has perhaps the most discretion in attempting to shape Supreme Court policy."6

What certainly adds to the significance of this relationship is the amount of contact and level of success the solicitor general has with the Supreme Court. The federal government appears far more frequently (as a litigant or amicus) than any other party or group.' Deen, Ignagni, and Meernik recently reported that the rate of filing amicus briefs has increased substantially over the past 50 years (a 600 percent increase from Eisenhower to Reagan).8 Of even greater importance is "the spectacular degree of success that the office has had in litigating before the Court."9

Consistent with this claim is the fact that from 1953 to 2000, no presidential administration won less than 65 percent of its cases when participating as an amicus, and some won more than 80 percent.10 Because of this high rate of success, it has generally been accepted wisdom that the solicitor general enjoys special advantages before the Court. Some have referred to the solicitor general as the Court's "nine and a half" member or the "tenth justice.

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