The Solicitor General of the United States: tenth justice or zealous advocate?

• Author: Chandler, Adam D.

The federal government loses hundreds of cases in the federal courts of appeals each year, but the Solicitor General will select only a handful of those cases--just fifteen or so in recent years--to petition the Supreme Court to review. When deciding whether to seek certiorari (cert.), the Solicitor General attempts to use the same standards that the Supreme Court uses when deciding whether to grant cert. And as the Supreme Court's docket has been halved during the last quarter-century, the number of cert. petitions from the Solicitor General's Office has declined even more precipitously. (1) Acting as the final "decider" on the overwhelming majority of federal appeals, the Solicitor General has a vast and underscrutinized (2) amount of discretion over the federal government's legal agenda.

This Comment argues that the Solicitor General should behave more zealously in his (3) advocacy at the petition stage, which will almost certainly require him to file more cert. petitions each year. By mimicking the decisionmaking of the Supreme Court as he currently does, the Solicitor General is insufficiently attentive to his role as an advocate and has improperly appropriated a judicial function for himself within the executive branch. This Comment also addresses concerns about the credibility of the Solicitor General and the scarce resources of his Office that might arise if he were to change his petitioning strategy. Ultimately, neither concern should inhibit the Solicitor General from being less restrictive in petitioning the Supreme Court. The Comment concludes with recommendations for reforming the Solicitor General's cert. practice.

1. THE SOLICITOR GENERAL'S CERT. PRACTICE

   Required by statute to be "learned in the law," (4) the Solicitor General is the federal government's chief appellate lawyer, (5) as well as "the country's most influential litigator." (6) Along with his four deputies and seventeen assistants, (7) the Solicitor General conducts virtually all Supreme Court litigation on behalf of the government. (8) He writes both cert.-stage and merits-stage briefs, presents oral arguments, answers the Supreme Court when it seeks the Solicitor General's views, decides whether and how to participate as an amicus, and chooses when to seek cert. (9) The Solicitor General has wide discretion in performing the last two of these functions, enabling him "to set the government's legal agenda." (10) The last function--playing "traffic cop" for government cert. petitions (11)--is the particular focus of this Comment.

   The Solicitor General petitions for review in a small fraction of the cases that the government loses in the courts of appeals. (12) In determining which cases make the cut, the Solicitor General adopts the Supreme Court's standard for "certworthiness," (13) a standard that emphasizes two criteria: a split of authority in the lower courts and the underlying legal issue's importance. (14) What makes a case important, however, is eminently subjective. (15) The Court rarely offers guidance on what it thinks is important, and there is no scholarship that illuminates how the Court uses the "importance" criterion in practice. Thus, the Solicitor General observes "what the Court has been accepting" to align his own judgments of "importance" with the Court's. (16)

   While the Solicitor General has always been stingy in pursuing cert. grants, over the last two decades he has "sharply curtailed" his requests for review even further. (17) Between October Term 1985 and October Term 1988, the Solicitor General filed an average of fifty cert. petitions per Term. (18) That figure steadily declined in the subsequent twenty years. (19) Most recently, between October Term 2005 and October Term 2008, the Solicitor General filed an average of just sixteen cert. petitions per Term. (20) Despite varying levels of participation at the cert. stage, the Solicitor General has enjoyed a rather invariant success rate for its cert. petitions, holding steady at approximately 70% (compared to about a 3% success rate for other "paid" petitions). (21)

   It is unsurprising then that the decline in government cert. petitions has coincided with the Court's own declining docket. The Court is now deciding fewer than half the number of cases it decided as recently as the mid-1980s. (22) Scholars, judges, and journalists have floated at least fifteen hypotheses for the decline, (23) but, aside from changing membership on the Court, (24) the only explanation that has withstood empirical testing is the decline in the number of Solicitor General cert. petitions. In two studies, Margaret Meriwether Cordray and Richard Cordray have demonstrated rigorously that the "significant reduction in the number of petitions for review filed by the Solicitor General" is a substantial and independent influence on the size of the Court's plenary docket. (25)

   The remainder of this Comment argues that the Solicitor General's standard for pursuing cert. is misguided and may actually be weakening the Solicitor General's position before the Court.

2. THE SOLICITOR GENERAL AS ZEALOUS PETITIONER RATHER THAN TENTH JUSTICE

   The Solicitor General abdicates his responsibility to advocate for the federal government and the United States when he refuses to bring cases to the Supreme Court in which those entities have an interest. That abdication is acceptable when in the service of a focused litigation strategy, when the stakes are minimal, or when an adverse Supreme Court ruling is assured. But concerns about the Solicitor General's credibility and his Office's fixed capacity are overblown and should not limit his advocacy at the cert. stage to the extent they do now. In particular, importing the Supreme Court's standard for granting cert. into the Solicitor General's Office as the standard for seeking cert. confuses the advocacy role of the Solicitor General. This Part argues that the Solicitor General should start behaving more like a lawyer and less like a Justice. (26)

   1. The Argument for More Zealous Petitioning

      One hallmark of effective advocacy, according to the Model Rules of Professional Conduct, is zeal. (27) The Model Rules suggests that a lawyer's officer-of-the-court responsibilities are "usually harmonious" with her responsibilities as a zealous advocate. (28) They also permit a "zealous advocate" to "assume that justice is being done" "when an opposing party is well represented." (29)

      The Model Rules is a guide for all lawyers, including, explicitly, government lawyers. (30) It would serve the Solicitor General--and those he represents--well if he remembers the ideal of the zealous advocate imagined by the Model Rules. He must remain as mindful of the interests he represents as he does of the Court's perspectives, if not more so. (31) Twenty-five years ago, the Solicitor General filed petitions in only about one-sixth of the cases in which petitions were sought by cabinet heads, U.S. attorneys, assistant attorneys general, and general counsels from departments and agencies. (32) The frustration of the government officials whose recommendations were not followed might sound something like Judge Learned Hand's remark that "[i]t is bad enough to have the Supreme Court reverse you, but I will be damned if I will be reversed by some Solicitor General." (33)

      Now that the Solicitor General files fewer than a third as many petitions as he did then, the number of disappointed "clients" has likely swollen. What's more, even when the Solicitor General is not acting on behalf of a department or agency, he frequently decides not to appeal monetary awards against the government--which directly affect the public fisc--as well as losses in criminal cases, tax cases, Bivens cases, and cases spanning the diversity of the federal government's litigating...