Despite Shakeup, Another Winning Term for Solicitor General

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By Kimberly Strawbridge Robinson

The U.S. solicitor general—the federal government’s top lawyer at the U.S. Supreme Court—had another successful term.

Seven to eight thousand cases are brought to the high court each term. Of the 70 or so that the justices agree to hear, most are reversed.

So racking up a good record at the Supreme Court is difficult. But the Solicitor General’s Office seems to do it every term.

The SG’s office did it again during the court’s recently concluded 2016 term, even though the office had three different acting solicitors general at its helm.

In all, the solicitor general substantially prevailed in nearly 80 percent of the matters it brought before the justices, according to research conducted by Bloomberg BNA.

This consistent success rate could be attributed to the fact that, because of institutional considerations, the Solicitor General’s positions don’t generally change much over time, Lucas C. Townsend, Gibson, Dunn & Crutcher LLP, Washington, told Bloomberg BNA.

Institutional Interests

The “Office of the Solicitor General represents institutional interests of the United States,” Townsend said. For a majority of policy matters, those interests “remain consistent from one presidential administration to the next,” he said.

“In many matters involving foreign affairs or criminal law enforcement, for example, the Government’s fundamental policy interests do not change dramatically over time,” Townsend said.

That consistency could lend credibility to the Solicitor General’s arguments. After all, the justices themselves “take a long-term view of the law that generally does not vary in response to changes in the presidential administration,” Townsend said.

The individuals who serve in the Solicitor General’s Office “are exceptionally well versed in advocating those governmental interests to the Supreme Court, and they frequently help to persuade the Supreme Court to avoid decisions that jeopardize longstanding governmental interests,” Townsend said.

The solicitor general’s consistent success rate is even more impressive given the discontinuity this term with three acting solicitor generals.

Former Principal Deputy Solicitor General Ian Heath Gershengorn served as the acting head until Trump’s inauguration. Jones Day partner Noel Francisco took over as acting SG until he was nominated for the solicitor general post himself. The current acting solicitor general is Jeffrey Wall, who will serve as the office’s number two if Francisco is confirmed.

Several Stages

The solicitor general filed 228 Supreme Court briefs during the 2016 term, according to its website. These briefs were filed in various stages of Supreme Court litigation, including applications asking for emergency relief, petitions seeking Supreme Court review, and merits briefs attempting to convince the justices to rule in the government’s favor.

Several of those briefs were filed in cases that are still pending, so the outcome in those cases is uncertain.

But in the more than 150 completed matters that the Solicitor General’s Office participated in during the 2016 term, the Supreme Court followed the Solicitor General’s recommendation in nearly 80 percent, according to Bloomberg BNA research.

High-Profile Win

One high-profile win for the SG came in challenges to President Donald Trump’s travel ban, which temporarily suspends entry of nationals from six predominantly Muslim countries.

The Supreme Court, on the last day of its 2016 term, allowed the Trump administration to implement the ban, which had been put on hold by lower federal courts.

Although the administration claimed a “ unanimous” victory, the court’s per curiam order was actually mixed. Although the court reinstated the ban, it refused to allow the administration to enforce it against some individuals, including those with “close familial” ties to U.S. citizens.

The court’s—perhaps intentionally—vague language prompted another emergency request from the administration, which had read the court’s wording narrowly. In that request, the court handed the SG one of its rare losses.

Challenging Exercise

The travel ban, though, illustrates that statistics regarding the Solicitor General’s record can be misleading.

“There are many metrics for calculating the Solicitor General’s success rate in the Supreme Court, and each involves, to some degree, judgment calls on what constitutes a ‘win’ and what constitutes a ‘loss,’” Townsend said.

“Many cases present multiple issues, not all of which are of equal importance to the Government,” he said. “In a given case, the Government may win on some issues and lose on others, or it may lose on its primary argument but prevail on a secondary argument.”

Bloomberg BNA’s statistics were based solely on the outcome of the request. That’s why the court’s first order on the travel ban is calculated as a “win,” even though the government didn’t get everything it wanted.

“Such mixed outcomes can make calculating the Solicitor General’s success rate in the Supreme Court a challenging and highly variable exercise,” Townsend said.

Petition Stage

A large part of the Solicitor General’s influence comes in getting the justices to hear the cases it wants. That includes convincing the justices to turn away cases the government doesn’t want the high court to hear, too.

Indeed, most of the SG’s participation came during the petition stage, when parties ask the justices to agree to review their cases. Briefs filed during this stage accounted for more than 75 percent of the SG’s filings.

In the petition stage, the solicitor general prevailed in nearly 90 percent of his requests.

The overwhelming majority of those victories occurred when the SG urged the justices not to review a case. The justices turned away such cases approximately 100 times.

‘CVSG’

Because the court turns away 99 percent of the cases it is asked to hear, such a high success rate in the petition stage isn’t surprising.

The Solicitor General’s persuasiveness is best demonstrated in petitions in which the Supreme Court asked for the government’s advice. Known as a CVSG, or call for the view of the solicitor general, such invitations are occasionally made in cases that implicate federal interests, even if the government isn’t formally a party.

The court “usually, but by no means always” follows the recommendation of the SG, former Solicitor General Gregory Garre told Bloomberg BNA in 2015.

During that term, the solicitor general’s success rate in CVSG recommendations had dropped from its typically near-perfect record. During that term, the court rejected the SG’s recommendation to hear or not hear a given case about 35 percent of the time.

The office, however, has returned to its customary success.

In the 13 cases where the SG recommended the justices turn away a case, the justices did so in 11. In only two cases did the justices grant a petition over the SG’s recommendation to deny review.

In all five cases where the SG recommended that the justices hear a case, the justices did just that.

Merits Briefs

The Solicitor General’s Office, however, did much worse in merits stage briefs.

The SG participated in 27 merits cases during the 2016 term. He was successful in just 17—63 percent—of them.

Most of that success came when the SG was acting as an amicus. The SG went 14-2 in that role.

When the government was a party, the SG went 3-8.

Not surprisingly, most of those losses came when the SG was the respondent, meaning that they had won in the court below.

The Supreme Court reversed lower courts about two-thirds of the time during its 2016 term.

Still, the 63 percent success rate in these merits petitions calculated by Bloomberg BNA “is consistent with other recent Terms,” Townsend said.

Recently, the Solicitor General’s reported success rates at the Supreme Court has swung “from as low as 40 percent to more than 70 percent for merits cases in a given Term,” he said. This term’s success rate falls on the high end of that range.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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