The Supreme Court and Sex Discrimination: the Role of the Solicitor General

Date01 September 1988
Published date01 September 1988
Subject MatterArticles
State University of New York at Stony Brook
New Fairfield, CT
article examines the effect of the solicitor
general as amicus
t curiae in the Supreme Court’s sex discrimination cases within the
JL context of a fact model of decision-making. The position of the
solicitor general is of particular interest as he is the representative of the
incumbent administration before the Court. Thus support by the Court
for his position can be seen as a measure of responsiveness to the execu-
tive branch. The amicus cases are especially important for understand-
ing the executive branch’s legal positions for here, unlike cases where
the U.S. is a party, the solicitor general may file for either side.
In assessing the impact of the solicitor, one must recognize that agree-
ment is not effect. The fact that the Court agrees with the solicitor’s po-
sition does not tell us that the Court was influenced by his stand. It may
be that the solicitor is filling briefs for litigants who, based on the facts
of the case, are likely to win anyway. Thus, it become essential to con-
trol for the types of cases before the Court prior to determining the in-
dependent impact of the solicitor general.
Controlling for the types of cases requires a model of Supreme Court
decision-making. Unfortunately, as Gibson (1983) notes: &dquo;The most strik-
ing deficiency of judicial behavior research is its lack of theoretical
decision-making models that (1) comprehensively include the multitude
of stimuli affecting decisions and (2) explain or predict a considerable
portion of the variation in decision making&dquo; (p. 8). Therefore, to test
the independent effect of the solicitor general we first develop a model
of Supreme Court decision-making. The model includes external or en-
vironmental factors, internal or institutional factors, case factors and dy-
namic factors. We
investigated these factors within the population of the
Supreme Court’s sex discrimination cases from 1971 until 1984. Particu-
larly, we tried to predict whether the Court voted for or against the equal
treatment claim made in each of these cases. First we
provide brief sum-
Received : January 22, 1987
Revision Received: June 29, 1987
Accepted for Publication: July 30, 1987
NOTE: An earlier version of this paper was delivered at the 1985 annual meeting of the
American Political Science Association. We
would like to thank Beverly Cook and Ka-
ren O’Connor for their helpful comments, suggestions, and criticisms on earlier ver-
sions of this paper.

maries of the Court’s sex discrimination doctrine and the Office of the
Solicitor General.
As early as 1873, the Supreme Court was upholding the right of states
to discriminate on the basis of sex. The decision in Bradwell v. Illinois
(1873)’ supported the Illinois practice of barring women from the legal
profession. The concurring justices argued in part that the &dquo;paramount
destiny and mission of womanhood are to fulfill the noble and benign
offices of wife and mother
During the economic substantive due proc-
ess era the Court often struck &dquo;protective legislation&dquo; as a violation of
the right to contract.3 However, when such protective legislation was
aimed at female workers, the Court made an exception and generally up-
held the laws in question (Baer 1978a; Davidson, Ginsburg, and Kay 1974;
McGlen and O’Connor 1983). In Radice v. New York, the Court said,
&dquo;The injurious consequences were thought by the legislature to bear more
heavily against women than men, and considering their more delicate
organism, there would seem to be good reason for so thinking.&dquo; (See also
Muller v. Oregon, 1908.)4 On occasion though, such laws were struck.5
With the end of economic substantive due process the Court was even
more likely to uphold state classifications based on sex. In Goesart v.
Cleary,6 the Court upheld a Michigan law which decreed that no female
could be a bartender unless she was the wife or daughter of the male
of the establishment. As recently as 1961 the Court upheld a Florida
law requiring males to seek an exemption from jury duty, but requiring
females to seek an exemption to be included in jury pools.~ Echoing Brad-
well, the Court declared that &dquo;woman is still regarded as the center of
home and family life. &dquo;8
The Court’s most recent grappling with sex discrimination began in
1971 with Reed v. Reed,9 and includes both statutory and constitutional
cases. Statutory cases typically involve interpretation of Title VII of the
Civil Rights Act of 1964, the Equal Pay Act of 1963, or Title IX of the
Education Amendments 1973. Constitutional cases typically include the
questioned validity of state or federal laws that discriminate on account
of sex, or some factor necessarily (e.g., pregnancy) or statistically (e.g.,
veteran’s preferences) related to sex. Court doctrine declares that sexual

Bradwell v. Illinois, 83 U.S. 130.

Ibid., p. 141.
Locherv. New York, 198 U.S. 45;
Louisian, 165 U.S. 578; and
v. Holden,
169, U.S. 366.
Radice v. New York, 264 U.S. 292 at 294. Muller v. Oregon, 208 U.S. 412.
Adkins v. Children’s Hospital, 261 U.S. 525 (1923).
335 U.S. 464 (1948).
Hoyt v. Florida, 368 U.S. 57.
3G8 U.S. 57, 62.
9 404 U.S. 71 (1971).

classifications are viewed under a &dquo;middle level scrutiny&dquo; equal protec-
tion test. For example, in Craig v. Boren, the Court asked whether the
law &dquo;served important governmental objectives&dquo; and was &dquo;substantially
related to the achievement of those objectives Such a middle level
equal protection test is more difficult to meet than simply showing a ra-
tional relationship between the classification and a legitimate state goal
(Baer 1978b; Ginsburg 1983; Gunther 1972), but not as great as showing
a compelling state interest, as required for racial classifications.
Judiciary Act of 1789 provided for the appointment of an Attor-
ney General of the United States. As late as 1850 the Attorney General’s
office consisted only of the Attorney General, two clerks and a messenger
(Huston 1967: 9). The Act of June 22, 1870, which created the Depart-
ment of
Justice, also established a new position for &dquo;an officer learned
in the law, to assist the Attorney General in the,performance of his duties,
to be called the solicitor-general&dquo; (ch. 150, section 2, 16 Stat 162). Con-
gress empowered the solicitor general to &dquo;argue any case in which the
government is interested&dquo; (ch. 150 section 5, 16 Stat. 162-63).
The powers granted to the solicitor general make him one of the most
influential actors in the federal judicial system. Besides being the govern-
ment’s attorney before the Supreme Court, the solicitor general signifi-
cantly influences what cases the Court will hear. His office has complete
control over Justice Department appeals to the Supreme Court, and his
approval is required for virtually all indepedent regulatory commission
requests to petition the Court for certiorari (28 U.S.C. section 2323
[ 1964]). The solicitor general also can file amicus curiae briefs with the
Supreme Court on his own initiative or at the Court’s request. Supreme
Court Rule 29 permits the solicitor general to file a brief without obtain-
ing the consent of the parties or leave of the Court. According to the So-
licitor General’s Office, the likelihood of a brief being filed increases if
(1) there is a significant issue in the case involving the federal govern-
ment or the public interest; (2) the case presents the issue appropriately;
and (3) the solicitor general can make a contribution to the case (Puro
1971: 138).
In order to examine the effect of the solicitor general, we are attempt-
ing to build a model of Supreme Court decision-making. In this section,
explain the external, internal, case, and dynamic factors that are ex-
pected to influence the Court’s decision-making.
External or Environmental Effects
The major proposition of this paper is that the Supreme Court is
responsive to the executive branch of government through its support

Craig v. Boren, 429 U.S. 191 (1976). See Gunther (1972).

for the solicitor general. More general arguments over the Court’s respon-
siveness began with the pathbreaking work of Dahl (1957). Dahl claimed
that the Court historically had been responsive to the political system;
rarely had it been successful in overturning the wishes of national majori-
ties. His thesis has been further examined by Adamany (1973), Casper
(1976), Funston (1976), Canon and Ulmer (1976), and Lasser (1985).
While Dahl and others have used judicial review as their measure of
responsiveness (or lack thereof), examining the number of laws over-
turned by the Court is neither a perfect measure of responsiveness nor
is it the only measure. In one decision, INS v. Chadha, 11 the Court struck
down more nearly 200 federal laws providing for a legislative veto. The
Court struck more national statutes here than it had in its previous 194
years. Some scholars have looked instead at the relationship between
court decisions and public opinion (Barnum 1985; Cook 1977; Giles and
Walker 1975; and Kuklinski and Stanga 1979).
measure responsiveness neither to legislative majorities nor pub-
lic opinion, but to the executive branch...

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