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Sept. 8 — The U.S. solicitor general has dual roles—as an advocate for the federal government and as an advisor to the justices of the U.S. Supreme Court.
Several times each term the justices formally invite the solicitor general to file a brief “expressing the views of the United States” in a case the Supreme Court has been asked to review.
Called a CVSG—or call for the views of the solicitor general—the court “usually, but by no means always” follows the recommendation of the SG, former Solicitor General Gregory Garre told Bloomberg BNA.
But the SG's office fared worse than usual last term, with the court rejecting its recommendations about 35 percent of the time, according to research conducted by Bloomberg BNA. In fact, the high court has already agreed to hear four cases this upcoming term that the solicitor general recommended the justices pass on.
Over the last five terms, the solicitor general has filed between 18 and 25 briefs per term in response to a CVSG, according to the Department of Justice's website.
The court calls for the solicitor general's views most commonly when “the question presented for review involves the interpretation and application of a federal statutory or regulatory scheme that a federal agency administers,” an article by now-D.C. Circuit Judge Patricia A. Millett said.
“In addition, the Court may seek the views of the Solicitor General when the case implicates an international treaty, international law, or some other aspect of foreign relations, about which the political branches have particular expertise,” Millett's article said.
When the court does invite the solicitor general's views, there is “an internal process” that the SG's office follows, Garre, now of Latham & Watkins LLP, Washington, said in an Aug. 31 e-mail.
The “SG’s office receives input (usually memoranda) from interested components of the government, both within [Department of Justice] and at other agencies.”
“Then the SG’s office considers the matter internally, with recommendations made by the Assistant to the SG working on the case and the Deputy SG,” Garre said. “Ultimately the SG makes the decision on what position to take, considering all the recommendations received.”
Millett's article notes that the parties are able to meet with the SG's staff to attempt to lobby them to their side.
Of course, all of this takes time, and the court doesn't set a formal deadline for the solicitor general's response, Garre said. “But by convention and practice, the SG typically responds within a few months, by the end of the term or middle of the term, keyed around the cut offs for considering petitions.”
Of the 21 CVSG briefs filed during the court's most recent term, nearly half of them were filed in May, according to the DOJ's website. This allows the court to consider the petition and the solicitor general's brief before the term ends in June.
The ultimate recommendation given by the solicitor general carries “significant weight with the Court,” Millet's article said.
“During the 2007 Term, the Supreme Court granted certiorari in eleven of the twelve cases in which the Solicitor General recommended review,” it said. “Thus, when the Solicitor General recommends that certiorari be granted, a petitioner’s statistically dismal (approximately one percent) chance of having certiorari granted can increase exponentially.”
“By the same token, when the Solicitor General recommends against certiorari, the prospects for Supreme Court review become even more remote,” the article said. “The Supreme Court denied review in the 2007 Term in every case in which the Solicitor General recommended that course.”
A 2009 George Mason Law Review article noted that generally the Supreme Court follows the SG's recommendation around 80 percent of the time.
For example, last term the solicitor general weighed in on two patent petitions, No. 13–896 and No. 13–1044. The solicitor general recommended that the court grant one of the cert. petitions, “limited to the first question presented,” and deny the other.
That is exactly what the Supreme Court did in Commil USA, LLC v. Cisco Sys., Inc., cert. granted limited to question 1, 83 U.S.L.W. 3347 (U.S. Dec. 5, 2014) (No. 13–896) and Cisco Sys., Inc. v. Commil USA, LLC, cert. denied, 83 U.S.L.W. 3328 (U.S. Dec. 1, 2014 (No. 13–1044).
But the solicitor general's overall record last term was worse than usual—the Supreme Court followed the SG's recommendation only about 65 percent of the time, according to research conducted by Bloomberg BNA.
As a result, the court will hear at least four cases next term in which the solicitor general recommended that the court deny review.
In one, the solicitor general recommended denial of certiorari because—in the solicitor general's eyes—the circuit court got it right.
In Spokeo, Inc. v. Robins, the U.S. Court of Appeals for the Ninth Circuit correctly decided that the plaintiff had satisfied Article III standing to sue self-proclaimed “people search engine” Spokeo Inc. under the Fair Credit Reporting Act for posting inaccurate—although generally more favorable—information about him, the solicitor general's response to the CVSG said.
In seeking review from the Supreme Court, Spokeo “virtually ignores” this specific holding, and instead asks the court to answer the “abstract question” of whether Congress can confer standing based on a “bare violation” of a federal statute, the solicitor general said.
Nevertheless, the Supreme Court agreed to take up Spokeo's proposed question during its 2015 term.
Unlike in Spokeo, the solicitor general recommended that the court deny review in OBB Personenverkehr AG v. Sachs, not because the lower court got it right, but because the case wasn't a good “vehicle” for resolving the legal issues.
Among other things, the court in OBB will consider the scope of the Foreign Sovereign Immunities Act's commercial activity exception, allowing parties to sue a foreign sovereign and its instrumentalities in the United States.
The Ninth Circuit used an “overly permissive formulation” of that exception when it held that a California citizen could sue a state-owned Austrian railroad for injuries suffered in Austria, the solicitor general's brief said.
The SG's recommendation was in line with Ninth Circuit Judge Alex Kozinski's dissent, where he wrote that the court's decision made “as much sense as forcing Mrs. Palsgraf to litigate her case in Vienna.”
Even though the Ninth Circuit got it wrong, the SG recommended that the court pass on OBB because the lower court's and parties' “cursory and incomplete” analysis of some of the legal issues “would make it difficult to provide guidance on the content” of the exception in future cases, the solicitor general said.
The George Mason Law Review article noted that the Supreme Court's ultimate decision on the case is sometimes “loosely correlated” with the SG's merits determinations.
We may soon see if that's true during the next term. The court will kick off its 2015 term with oral argument in OBB October 5.
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