Solicitor General Influence and Agenda Setting on the U.S. Supreme Court

• Author: Ryan C. Black,Ryan J. Owens
• Date: 01 December 2011
• DOI: 10.1177/1065912910388185
• Published date: 01 December 2011

388185PRQ64410.1177/1065912910388185B
lack and OwensPolitical Research Quarterly
Political Research Quarterly
64(4) 765 –778
Solicitor General Influence and
© 2011 University of Utah
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Agenda Setting on the U.S.
DOI: 10.1177/1065912910388185
http://prq.sagepub.com
Supreme Court
Ryan C. Black1 and Ryan J. Owens2
Abstract
Do Solicitors General (SGs) influence how justices vote? Years of scholarship suggests that the answer is yes but has
largely failed to examine what influence means and just how much influence the SG wields. The authors examine
SG influence during the Court’s agenda-setting stage. They find, first, that justices follow SG recommendations even
when they are completely opposed to them and, second, that law exerts a strong independent influence. Justices are
significantly less likely to follow SG recommendations that contravene important legal factors.
Keywords
law, courts, solicitor general, influence
On January 24, 1994, the U.S. Supreme Court unanimously
may look the same whether influence exists or not. To
ruled that federal racketeering laws apply to abortion pro-
determine whether the SG influences a justice, one must
testers.1 The decision paved the way for proabortion groups
account simultaneously for a host of factors, chief of
to sue protesters for demonstrating at abortion clinics—
which is the justice’s likely course of action absent the
a tremendous setback for the prolife movement. Yet the
SG’s intervention.
case nearly failed to receive the Court’s attention. Only
In what follows, we examine whether the SG influ-
Justices White, Blackmun, and Stevens cast clear votes to
ences the votes justices cast and whether there are limits
grant review. Chief Justice Rehnquist and Justices Kennedy,
on the SG’s influence. We undertake this task in the con-
Scalia, Thomas, and Souter indicated their intent to deny
text of the Supreme Court’s agenda-setting process. More
review. As was so often the case during the Rehnquist
specifically, we examine how justices respond to SG rec-
Court era, Justice O’Connor was in a position to cast the
ommendations to grant or deny review to cases, focusing
key vote. If she voted to deny review to the case, it would
on cases where the SG files briefs at the behest of the
receive no attention from the Court. If she voted to grant
Court and those (less frequent) cases where the SG files
review, the Court once again would traverse the thicket of
such briefs on her own cognition. We are aided in this
abortion politics. She voted to grant review. Remarkably,
endeavor by a research design that contains three critical
however, O’Connor’s original inclination in the case was
components. First, we theorize justices’ ex ante prefer-
to deny review. Yet after receiving the U.S. Solicitor
ences in each case. After controlling for these prior
General’s (SG) brief, in which he recommended the
beliefs, we can then employ archival data to compare their
Court hear the case, O’Connor switched her vote to grant.
actual votes to their expected votes and, thereby, detect influ-
In short, but for O’Connor’s vote switch—which itself
ence. Second, by focusing primarily (though not exclu-
likely turned on the SG’s recommendation—the case
sively) on cases where the SG has been forced to participate,
never would have been decided.
we largely remove the possible selection effects that would
This story, and others we could tell, leads us to ask two
arise from a strategic SG getting involved only in cases
related and fundamental questions: Do SGs influence jus-
tices’ behavior, and if so, what are the limits of that influ-
ence? Despite its importance, a robust answer to the
1Michigan State University, East Lansing, MI, USA
2
question of SG influence has eluded scholars for decades.
Harvard University, Cambridge, MA, USA
To be sure, studies find that the SG is highly successful
Corresponding Author:
before the Court. Nevertheless, success does not equal
Ryan J. Owens, Harvard University, Department of Government,
influence. The SG’s success might have nothing to do
1737 Cambridge Street, Cambridge, MA 02138
with influence (Segal 1988). Indeed, judicial outcomes
Email: ryan_owens@gov.harvard.edu

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Political Research Quarterly 64(4)
she expects to win. And, finally, we address features that
argued that much like a “Tenth Justice,” the SG serves as
may limit the amount of influence the SG wields.
an agent of the Court (Caplan 1988). She plays a special
We witness two important results. First, we find strong
role for the Court, screening cases and advocating posi-
support for SG influence. Justices who completely dis-
tions that advance the goals of the Court as an institution
agree with the SG nevertheless follow her recommenda-
(Salokar 1992). As one former clerk told us, the SG is
tions 35 percent of the time, a number we take to be
expected to “play as an honest broker of the facts” when
powerful evidence of influence. Second, we discover that
communicating with the Court. Perry’s (1991, 132) semi-
the SG’s influence is bounded by law. Justices of all ide-
nal text likewise is replete with comments from justices
ological persuasions—even ideological allies—are who assert that the SG aids the Court:
significantly less likely to follow an SG recommendation
that contradicts the weight of the law. This finding high-
Every solicitor general . . . has taken this job very
lights the importance of law in judicial decision making
seriously . . . not to get us to take things that don’t
and suggests that researchers should continue to look for
require our attention relative to other things that do.
evidence of legal influence elsewhere. In short, our results
They are very careful in their screening and they
suggest that SGs will be most influential when they bal-
exercise veto over what can be brought to the board.
ance the often competing features of law and policy (Pacelle
2003; Wohlfarth 2009).
In recent years, scholars have taken a different tack and
applied signaling theory to examine the ideological con-
The SG and The Court
ditions under which justices accept the information pro-
vided to them by the SG (Bailey, Kamoie, and Maltzman
The SG supervises and conducts government litigation in
2005). Given an asymmetry in information between sender
the U.S. Supreme Court and is intricately involved in every
and receiver, the receiver relies on shortcuts, such as ide-
stage of U.S. appellate litigation (Pacelle 2003). Lawyers
ological agreement, to determine the accuracy of the
in the SG’s office “do the bulk of the legal work in Supreme
sender’s signal. If the sender and receiver generally share
Court cases in which the federal government participates,
the same worldview, the receiver has good reason to trust
including petitions for hearing, the writing of briefs,
the information conveyed by the sender. Alternatively,
and oral argument” (Baum 2007, 88). According to Perry
if the sender and receiver hold competing worldviews, the
(1991), the SG serves at least three functions. First, she
receiver will discount the information except when it is
represents the interests of the United States before the
contrary to the sender’s self-interest. Applying this theory
Supreme Court. Second, she decides which cases the
to the Court’s relationship with the SG, Bailey, Kamoie,
U.S. will appeal when it loses its cases in the lower
and Maltzman (2005) find that a justice is likely to vote
federal courts. And third, she decides whether the United
with the SG when she is more liberal (conservative) than
States will file an amicus curiae brief or seek rehearing in
the justice but happens to take a conservative (liberal)
any case involving the United States. The SG also syn-
position in the case.
thesizes the government’s sometimes varying legal
Other theories assert that SG success is the result of
positions. When federal agencies take competing positions
separation of powers considerations (Johnson 2003).
on legal issues, the SG decides which side may appeal to
Because the Court relies on the executive to enforce its
the Supreme Court and which legal arguments the United
decisions, justices defer to the SG (Epstein and Knight
States will pursue. The SG, then, coordinates the long-term
1998). Consistent with this theory, Johnson (2003) finds
U.S. legal strategy in the judiciary and has tentacles spread-
that the Court is more likely to invite the SG to participate
ing throughout the federal court system.
in cases to determine whether the president will enforce
The SG is highly successful. During the Rehnquist
its decisions. Along similar lines, Segal (1988) argues
Court era, the SG won over 62 percent of all cases in
that SG success is the result of general deference by the
which the United States was a direct party and over 66
Court to its more democratically elected counterparts.
percent of cases in which she participated as amicus
Others claim, however, that the SG’s key to success is
curiae (Epstein, Segal, Spaeth, and Walker 2007).
simply experience. Because she appears before the Court
Numerous additional studies provide systematic confir-
more often than any other litigant, the SG is “familiar
mation of the SG’s success (e.g., Deen, Ignagni, and
with the predilections of individual justices and the
Meernik 2003; Segal 1990; Segal and Reedy...