Foreword: does the Solicitor General matter?

• Author: Waxman, Seth P.

We've gathered at the outset of the new year to puzzle about federalism--what is it, where did it come from, and where is it going? So it seems appropriate to commence this symposium by invoking the opening scene in Stanley Kubrick's film, "2001." Although most of the movie takes place in outer space, it begins with a bunch of apes in the middle of the forest. They're astounded to see a huge black stone monolith in their midst. They don't know what to make of it. They wander around it, they grunt at it, they bang on it. But they don't know where it came from, and they don't know what it means.

I know the feeling. And so do many of my colleagues who grew up in the law at a time when the Eleventh Amendment was understood to mean more or less what it said and Hans v. Louisiana(1) was an obscure, perhaps sui generis, case. When the commerce power was muscular enough to accommodate not only commercial activity, but civil rights and environmental protection as well. When Congress was understood to have broad prophylactic authority under Section Five of the Fourteenth Amendment. When the Tenth Amendment meant that the national government could not dictate where a State should locate its capital--and not much more.

None of that, of course, is true today. The doctrines we have now come to identify as defining the parameters of federalism have been transformed over the past ten or fifteen years, and the rate of change has accelerated during the most recent five or six. How far this transformation will go--and what stasis will resemble, if and when it is achieved--is something no one can know. Not even the Justices of the Supreme Court can predict that with confidence.

One thing we do know is that at the losing end of every federalism decision in the past nine years has been a Solicitor General. Kenneth Starr started us off in 1992 with New York v. United States.(2) Drew Days doubled that, with watershed losses in Lopez(3) and Seminole Tribe.(4) Not to be outdone, in a single year as Acting Solicitor General, Walter Dellinger matched that number with Printz(5) and Boerne.(6) But I have left my predecessors far, far behind. College Savings,(7) Florida Prepaid,(8) Alden,(9) Kimel,(10) Morrison,(11) Garrett(12)--I have lost them all, five to four. I may be the only Solicitor General to have actually won a federalism case in the last decade--Reno v. Condon.(13) But it's probably also only fair to call me to account at least partially for three other cases--Vermont Agency,(14) Jones,(15) and Cook County(16)--in each of which the Court pretermitted a constitutional federalism question only through muscular application of the Ashwander doctrine of constitutional avoidance.(17)

So I have no illusions about why I am here. What Stanford gently packaged as an "invitation" in truth appeared to me more to resemble a writ of habeas corpus: a command to produce the body of the Solicitor General who yielded more of the national government's authority than anyone in American history. So here I am before you, bound hand and foot.

But not gagged. Oh, I'm not here to rail out, to rage against a five-Justice stronghold I rarely penetrated. Rather, I'd like to share some preliminary thoughts about a question I hope to think more about over the next few months. It has very much to do with these cases. But it has nothing to do with whether or not they were correctly decided. It asks this question: In federalism cases, does the Solicitor General matter?

Let me explain what I mean. We all know that the Solicitor General is popularly termed the "Tenth Justice." We know that many legendary figures have held the position. And we know that for most of its venerable history the office has earned and enjoyed a unique respect in the Supreme Court. But does that matter? Does the Solicitor General have any special ability to influence the development of Supreme Court doctrine?

Sometimes--and sometimes often--the answer is yes. Representing a client that is a party in approximately one-half of all cases pending in the federal courts, the Solicitor General is responsible both for determining what position the United States will take on many important questions of federal law and often for choosing the specific cases in which to advance that position. No other lawyer superintends thousands of cases at a time, and none other has the authority to decline to pursue cases solely because doing so would not promote the orderly development of the law. These two facts carry the potential to mean a great deal.

It is possible, I submit, to discern periods in the legal history of the United States, and substantive areas of the law, in which government advocacy--both substantive and procedural--influenced the decisionmaking of the Supreme Court. Let me explain what I mean by this and give some examples. I realize, this being the academy, that I am addressing an audience preternaturally skeptical of any assertion that advocacy plays an important role in the development of doctrine--particularly constitutional doctrine in the Supreme Court. But I come from a different world, and I think it often matters a great deal--particularly at the margins.

When I speak of substantive influence, I mean that the Supreme Court should, and in fact does, take seriously the expressed views of the United States. When the Solicitor General speaks about the needs of the national economy, when he warns of the real-world consequences of interpreting statutes or structuring remedies in a particular way, when he explains the context in which laws are executed, the Court properly takes heed. Not because Solicitors General are uniquely persuasive, or because they wear a funny costume. But rather because the views they express constitute a distillation--a reconciliation--of the often-disparate long-term interests of a national, representative government.

When I speak of procedural influence, I am referring in part to the ability of the Solicitor General--on occasion--to affect which cases come to the Court on a particular issue, and in what order. Why should this matter? Well, for one thing, because judges are human beings: Facts and context influence not just the outcome, but sometimes also the reasoning of a decision. For another thing, judges in the common law tradition are incrementalists. They are generally more comfortable moving the law in small steps rather than in a gigantic leap. Considering cases in incremental fashion permits the Court, over time, both to address the content of constitutional doctrine and to explore in step-by-step fashion its logical limits. And it permits developments in constitutional doctrine to develop momentum. It's important that each journey start out on the right foot. And sometimes the Solicitor General can help.(18)

One way is through the unique tradition whereby the Court "invites" the Solicitor General to express the views of the United States with respect to petitions pending in nongovemment cases. When so invited, the Solicitor General advises the Court of the United States' views both on the merits of the issues presented and on whether the case presents an appropriate vehicle for resolving those issues.(19)

The Solicitor General may also influence the progression of cases by exercising strategic judgment about which to bring before the Court, and in what order. When Franklin Roosevelt ushered in the New Deal, the political branches confronted a conservative Court whose constitutional doctrines stood squarely in the path of their programs. Much has been written about how the Court's doctrine came to accommodate the New Deal. But in several critical respects careful litigation strategy played an indispensable role--for example, in the deliberate ordering of the Gold Clause cases, and especially the Commerce Clause cases culminating in Jones & Laughlin Steel.(20)

My aim here is to explore--tentatively and sketchily--the extent to which in the modern federalism cases the Solicitor General retains any unique ability to assist in the development of the law. If Stanley Reed and Robert Jackson could claim some credit for assisting the Hughes Court in moving Commerce Clause doctrine from "direct effects" to Wickard v. Filburn,(21) should their remote successors get correlative blame for the reversal of that trend? Does the Court, in other words, particularly...