Academic journal article Political Research Quarterly

Explaining Executive Success in the U.S. Supreme Court

Academic journal article Political Research Quarterly

Explaining Executive Success in the U.S. Supreme Court

Article excerpt

The solicitor general is widely believed to occupy a special status among the parties appearing in the U.S. Supreme Court. A broad array of theoretical advantages are thought to contribute to the federal government's influence, but scholars have no direct evidence of their impact. More importantly, virtually all existing research has failed to measure directly the influence of those advantages across other parties, as well. Estimating a series of probit models of executive success in the Court under both Democratic and Republican administrations, I test the impact of one such advantage, litigation experience, measured for all parties across all cases. The results suggest that, notwithstanding the conventional wisdom, there is nothing distinctive about the solicitor general's influence. Thus, existing explanations regarding the solicitor general's institutional prestige appear to overstate the importance of the executive's role in the Court.

After more than thirty years of research, scholars of the U.S. Supreme Court have yet to demonstrate why the solicitor general of the United States is such a successful litigant. To be sure, the federal government seemingly enjoys enormous advantages, holding a position of singular prestige, but the reasons that account for its victories remain undocumented. The most commonly offered explanation of this success is that, as the voice of the United States, the solicitor general is the prototypical repeat player and, as such, reaps a much magnified share of the litigation leverage accompanying that position; by contrast, such benefits can only be found in lesser degrees among other litigants (Galanter 1974). Ironically, scholars have no empirical foundation for the assertion that the solicitor general brings a distinctive and influential reputation to the high court. In fact, the claim that the executive branch carries special weight before the justices is based upon little more than explanatory models that account only for the participation of the federal government-its mere presence or absence-rather than any of the special qualities it is purported to possess. Moreover, whether those qualities are unique to the solicitor general or whether they are shared across litigants is largely an unanswered question, as well. Does the federal government genuinely have a special relationship with the Supreme Court, as the literature suggests? This question can only be addressed by measuring-directly and across all parties-some advantage, or set of advantages, that would likely benefit those who appear in cases before the Court. Such direct indicators of litigation advantage can then be utilized to test their general impact, their influence on judicial decision making across all cases. Furthermore, to the extent that they are beneficial, whether those attributes are especially meaningful for the solicitor general can also be subjected to systematic scrutiny.

What kinds of advantages might lend themselves to such testing? A prominent consideration is litigation experience (Galanter 1974; Songer and Sheehan 1992; Wheeler et al. 1987). Among the bar at large, litigation expertise plays a modest but significant role in shaping the direction of the Court's outcomes (McGuire 1995). Employing a direct measure of experience for all lawyers who appear before the Court, I show that, once such experience is taken into account, the "special status" of the solicitor general disappears, a condition that holds under both Democratic and Republican administrations. I conclude that, at least insofar as decisions on the merits are concerned, the federal government is not, as some have suggested, the "tenth justice" (Caplan 1987). Instead, the solicitor general is merely one of many successful lawyers who appear before the Court. The results suggest that, once direct measures of litigation advantage are introduced for all parties, there is no evidence for the literature's frequent assertion that the solicitor general's success is derived from an uncommon reputation as the Supreme Court's leading practitioner. …

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