The Rehnquist Court and Support of Federal Agencies

Article excerpt

In cases involving federal agencies, critical factors in the Court's decisions include the type of outcome sought (liberal or conservative) and the attitudes of the justices vis a vis the arguments made.

Inter-branch relations are at the heart of our system of government. An important point of contact between the branches occurs when a federal agency is a party before the Supreme Court. Indeed, approximately onequarter of cases tied to the federal government involve federal agencies. This article analyzes this significant intersection of institutions. More specifically, it delves into the Rehnquist Court's decision making in federal agency cases.

Much has been written about the Rehnquist Court in areas such as federalism and its treatment of issues such as abortion, flag burning, affirmative action, and gay rights.1 However, the Court's treatment of federal agencies has engendered very little discussion. What has its decision making been in agency cases? How supportive has the Rehnquist Court been of the government's position? Does it matter which agency is before the Court, or which presidential administration is being represented? Has the Rehnquist Court been consistent over time or have there been two Rehnquist Courts?2 Is "deference" or "support" for the agencies simply a surrogate for the justices' ideology or policy preferences? These and other questions will be considered for the federal agency cases from 1986-2005.

The solicitor general, the Court, and agency cases

When the subject is the federal government before the Supreme Court, it is all but compulsory to discuss, at least briefly, the solicitor general. The solicitor general almost exclusively represents the executive branch and the federal government before the Supreme Court. It has long been accepted wisdom that the solicitor general enjoys special advantages and has "extraordinary influence" in his dealings with the Court.3 This has led to the solicitor general being dubbed the "Tenth Justice."4 A large part of this reputation is connected to the solicitor general's impressive ability to win cases on the merits and as an amicus curiae.5

The relatively high rate of success that the federal government enjoys before the Supreme Court may be related to both litigant status and being a "repeat player."6 The Court may view the solicitor general as a co-partner in the federal system and therefore shows deference. The solicitor general's experience, expertise, and resources could also result in the Supreme Court potentially paying special respect for the federal government as a party or amicus. The solicitor general is not only a repeat player, but is the ultimate repeat player. His office is connected to (as litigant or amicus), most of the Supreme Court's caseload.7 Lastly, the solicitor general's success rate may be due, at least in part, to choosing cases to appeal or file an amicus brief in which he is more likely to win.8

Connected with the solicitor general's unique relationship with the Court are special behavioral incentives. Since he regularly appears before the justices, the solicitor general has a greater than normal incentive to be fair to both sides of a case and for his information to be reliable, neutral, and non-political. If he and his office establish this type of reputation for professionalism, then he and those he represents could be given an elevated status as a reward.'1 The Court could also reward the solicitor general for playing the role of a "gatekeeper" and screening cases that he views as not being worthy of the Court's time.10 The solicitor general appeals only about 10 percent of the cases where the government lost in the lower courts." Possibly the Court is grateful and appreciative for receiving good or unbiased information, and for having more time because relatively few cases are appealed to the Court where the federal government would have likely lost.

Another reason why agencies might be successful is related to the legal model of Supreme Court decision making. …