Solicitor General’s Outsize Influence at High Court Draws Scrutiny

WASHINGTON (CN) — Aside from those who wear robes, U.S. Solicitor General Noel Francisco may have the biggest role to play this term in some of the Supreme Court’s most closely watched cases, Yale Law students suggest in a new article on the evolving stature of amicus oral argument.

Informally termed the 10th justice, the Solicitor General’s Office has long been invited to offer the position of the federal government on key cases before the Supreme Court.

U.S. Solicitor General Noel Francisco is pictured here on May 10, 2017, at his confirmation hearing before the Senate Judiciary Committee. (AP Photo/Cliff Owen)

Such input is sometimes sought regardless of whether the government is directly involved in the case, but Yale Law School students Darcy Covert and A.J. Wang noted in a February law review article that over the years this trend of the solicitor general participating in cases with no federal party has increased.

How significant oral argument is to the outcome of any one case is itself an open question. Covert and Wang focused their research, meanwhile, on whether the court invites scrutiny by giving an office with clear political ties an unusually prominent role in deciding cases.

“In these cases, it is not just that the court listens to a political actor,” the Covert and Wang article states. “Rather, the court (or some of the justices) may benefit from a political actor who makes sophisticated legal arguments that advance ideological interests while benefiting from a reputation for neutrality and independence.” (Parentheses in original.)

Generally the Supreme Court hears only from attorneys who represent parties in cases that were granted writs of certiorari. In some instances, however, the court agrees to give precious argument time to a third party not directly tied to the case, known in Latin as an amicus curiae, or friend of the court.

Covert and Wang analyzed every motion an amicus filed seeking to participate in oral arguments and found that the solicitor general is overwhelmingly more likely than other parties to have its request granted.

Every term since 1980 has seen the Solicitor General’s Office account for more than 85% of all cases that featured arguments from an amicus. In 10 of those years, the solicitor general was the only party that argued as an amicus.

But for one denial in 2011, the court granted all of the solicitor general’s 253 requests to participate in oral arguments from 2010 to 2017. Over the same time period, it only granted eight of the 26 motions filed by other amici, according to the paper.

The Solicitor General’s Office is charged with representing the interests of the United States, but solicitors general have given that mandate a broad reading, jumping into cases without a clear impact on the federal government.

Covert and Wang note this most often puts the solicitor general’s office in the middle of high-profile and highly political disputes at the court, with the possible side effect of making the court’s ultimate ruling appear more political.

The students argue that to reduce this, the court should reconsider the situations in which it allows the solicitor general to participate at oral arguments, bringing it more in line with the rare situations in which it allows other parties to participate without a direct interest.

Their proposals would bring the solicitor general into arguments when the office has a “concrete interest” and “provides new legal reasoning,” or if it advances “an entirely new legal argument.”

Covert and Wang said their interest in the topic came after noticing the frequency with which Francisco was bringing the Trump administration’s view to high court arguments, but quickly came to see Francisco was mostly continuing a trend begun by his predecessors.

“One thing that came through overwhelmingly in the course of our research is that this phenomenon is really a bipartisan issue,” Wang said in a phone interview. “And so though many of our examples are from more modern terms, we really want to emphasize that administrations of both political parties have used this tactic to present their views to the Supreme Court.”

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