Why Even Bother Asking? SCOTUS Shirks SG Recommendations

VerrilliLast September I declared that the U.S. Solicitor General’s overall record on CVSGs—that is, Calls for the Views of the Solicitor General—was worse than usual last term.

“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,” I explained.

And while a 2009 George Mason Law Review article said that the Supreme Court generally follows the SG’s recommendation about 80 percent of the time, last term the court followed the SG’s recommendations only 65 percent of the time.

So how’s the SG doing this term? Not great …

Of the four cases that the SG has filed an “invitation” brief in this term, two have already been granted over the SG’s recommendation to deny certiorari.

In Bank Markazi v. Peterson, No. 14-770, the SG urged the court to stay out of a separation-of-powers dispute involving more than 1,000 victims of Iran-sponsored terrorist attacks.

There, the Second Circuit rejected the Iranian Central Bank’s argument that a federal law aimed at making it easier for the victims to seize Iranian assets to satisfy nearly $2 billion in judgments was unconstitutional.

The Second Circuit held that the law didn’t violate separation-of-powers principles because it didn’t compel a predetermined result in the case, but merely retroactively changed the law.

In its invitation brief, the SG said the Second Circuit got it right, and that the Supreme Court shouldn’t review the case. The justices took it anyway and the case will be argued Jan. 13.

In the second case granted over the SG’s recommendation this term, the court agreed to hear a pair of energy cases, Hughes v. PPL EnergyPlus, LLC, No. 14-614, and CPV Md., LLC v. PPL EnergyPlus, LLC, No. 14-623.

The SG’s invitation brief in those cases once again argued that Supreme Court review wasn’t warranted because the circuit court got it right. And once again the Supreme Court granted review.

The cases—regarding the Federal Energy Regulatory Commission’s exclusive authority to regulate the wholesale energy market—will be argued Feb. 24.

The Supreme Court hasn’t acted yet on the SG’s two other invitation briefs filed this term.

The SG’s long-awaited invitation brief in Nebraska v. Colorado, No. Orig. 144, was just filed last month.

The brief urges the Supreme Court to stay out of an interstate spat over Colorado’s legalization of marijuana.

The SG said entertaining the suit would “represent a substantial and unwarranted expansion of this Court’s original jurisdiction.”

Whether the court heeds that warning remains to be seen. The court hasn’t set this one for conference yet, though it likely will in the coming weeks.

However, we could know soon if the SG will start the term with an 0-3 record on CVSG recommendations.

After receiving the SG’s invitation brief in Smith v. Aegon Cos. Pension Plan, No. 14-1168, in November, the court distributed it for consideration at its Jan. 8 conference.

During these private conferences, the justice decide whether to take up certain cases.

Will the court agree with the SG that this ERISA case isn’t worth the court’s time? Stay tuned …

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