Lessons In Not Throwing Caution To the Wind

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It seems a fitting tribute to include a post about the Office of the Solicitor General (OSG) on the day the current Solicitor General, Donald Verrilli, steps down.  The OSG is one of main gatekeepers to the Supreme Court’s review.  Multiple times every Term the Justices request the OSG to express views on whether or not to grant a petition to hear a case.  This process known as Call for the Views of the Solicitor General or CVSG tends to generate responses towards the end of each Supreme Court Term.  So as not to disappoint, the OSG provided several responses to CVSGs last week.  This post examines the OSG’s responses to CVSGs since the 2012 Term.  In particular, it focuses on what we can take away from these responses and what methodology the OSG might utilize in coming to its decisions.

One handy resource in researching the OSG’s filings is the Justice Department’s website.  Here you can find all of the OSG’s filings for the past several decades (although to be fair there are a few errors in the data as you look at some of the earlier briefs).

Since and including the 2012 Term the OSG has filed 78 responses to CVSGs.  Of these 78, 17 or about 22% of these responses recommended grants while the other 61 or 78% led to recommendations of denials.  The Supreme Court has yet to rule on 10 of the recommendations.

The OSG is part of the Executive Branch of the US Government but of course the OSG is called upon to make recommendations in areas that go far beyond the realm of the Executive.  Below is a figure, based on data from the OSG’s website, of the issue area breakdown of the OSGs responses to CVSGs since the 2012 Term.

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Looking at the issue areas, the overwhelming majority of CVSGs come from the civil division.  Although the majority of grant recommendations come from this issue area as well, it is interesting to note that 3 of 5 or 60% of the OSGs responses to CVSGs in treaty-related cases led to grant recommendations. This is the highest proportion of recommended grants of all the issue areas.

The crux of this post though has to do with the OSGs responses and the Court’s corresponding decisions.  Of the 67 cases with CVSGs where the Court subsequently ruled on the petitions, 34 or just over 50% led to petition grants. The OSG only recommended 11 or 32% of these cases as grants in response to the CVSGs.  If the OSG had flipped a coin and made a decision it might have had a higher rate of success.  Divining the OSG’s recommendations, however, takes more than a coin flip.

The OSG has a reputation to uphold not only as an office with the top advocates before the Supreme Court, but also as a purveyor of useful information regarding which cases are best suited for the Court’s adjudication.  This role has led to the Solicitor General’s nickname as “The Tenth Justice” (which might need to be switched to “Ninth” at the present time).

Of the 13 cases where the OSG has recommended grants since the 2012 Term and the Court has come to a decision on cert, 11 or 85% led to granted petitions.  The two recommended grants that led to denied petitions were in Fifth Third Bancorp v. Dudenhoeffer (2013) and Moores v. Hildes (2014). The OSG’s rate of success with its recommendations is much more in line with what one might expect from the OSG.  From this data it appears that the SG is cautious about recommending cases to the Court, and as an entity would prefer to deny cases that are on the margin to keep the number of recommended grants low.  This helps to preserve the SG’s reputation and grant success rate in response to CVSGs.

There are 11 CVSG’s in cases where the Court has yet to decide on the outcome of the petition.  The OSG recommended grants in four of these cases.  The four cases where the OSG recommended grants are in Life Techs. v. Promega Corp., Czyzewski v. Jevic Holding Corp., Fry v. Napolean Cmty Sch., and Lightfoot v. Cendant Mortgage Corp.  If the last several years shed light on the Court’s decision-making, then we should expect grants in at least 3 of these 4 cases.  Also, if the Court’s penchant for granting cases notwithstanding the OSG’s recommendation of denials maintains at the same rate, then we should see the Court grant approximately 2 of the 7 outstanding recommended denials.  These cases include: Midland Funding, LLC v. Madden, Odhiambo v. Kenya, Helmerich & Payne Int’l Drilling Co. v. Bolivarian Republic of Venez., Tibbs v. Estate of Goff, Ivy v. Morath, Hernandez v. Mesa, and Mississippi v. Tennessee.

Note: Curiously the brief in Lightfoot v. Cendant Mortgage Corp. (No. 14-1055) does not appear on the OSG’s website.


On Twitter: @AdamSFeldman

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