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Supreme Court

The Solicitor General and the Shadow Docket

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[T]he Solicitor General’s special relationship to the Court is not one of privilege, but of duty — to respect and honor the principle of stare decisis, to exercise restraint in invoking the Court’s jurisdiction, and to be absolutely scrupulous in every representation made.

 

— Seth P. Waxman, Solicitor General of the U.S. (1997–2001)1×1. Seth P. Waxman, Solicitor Gen. of the U.S., “Presenting the Case of the United States as It Should Be”: The Solicitor General in Historical Context, Address to the Supreme Court Historical Society (June 1, 1998), https://www.justice.gov/osg/about-office [https://perma.cc/QV72-3SZD].

 

For almost as long as there has been a Solicitor General of the United States (150 years next June2×2. See An Act to Establish the Department of Justice, ch. 150, § 2, 16 Stat. 162, 162 (1870) (codified at 28 U.S.C. § 505 (2012)) (creating the position). ), there has been debate over the unique functions and obligations of the office.3×3. See Rebecca Mae Salokar, The Solicitor General: The Politics of Law 8–32 (1992) (exploring the structural tensions that have defined the position throughout its history). It’s not just that the Solicitor General is one of the only federal officers who, by statute, must be “learned in the law.”4×4. 28 U.S.C. § 505. Besides the Vice President, the Solicitor General is the only federal officer with formal offices in multiple branches of the federal government — in both the main building of the Department of Justice and the Supreme Court.5×5. Waxman, supra note 1. And the Solicitor General does not just have a physical presence at the Supreme Court; the Court’s rules and traditions both formally and informally privilege the Solicitor General as the de facto head of the Court’s bar — and show special solicitude to the Solicitor General across a constellation of considerations.6×6. See Lincoln Caplan, The Tenth Justice: The Solicitor General and the Rule of Law 19–50 (1987).

With these special privileges come special responsibilities. As Simon Sobeloff (Solicitor General from 1954 to 1956) put it, “[t]he Solicitor General is not a neutral, he is an advocate; but an advocate for a client whose business is not merely to prevail in the instant case. My client’s chief business is not to achieve victory, but to establish justice.”7×7. Simon E. Sobeloff, Attorney for the Government: The Work of the Solicitor General’s Office, 41 A.B.A. J. 229, 229 (1955). The oft-repeated moniker that the Solicitor General is the “tenth Justice”8×8. See, e.g., Caplan, supra note 6, at 3. may well reflect the perception that the forty-eight holders of that office have generally lived up to that responsibility — or, at least, that the Court has acted as if they have.

Recently, that perception has come under unusually significant fire. Solicitor General Noel Francisco was accused of repeatedly misleading the Justices during and after oral argument in the travel ban case.9×9. See Joshua A. Geltzer, The Solicitor General Is Still Misleading the Supreme Court, Slate (May 2, 2018, 3:54 PM), https://slate.com/news-and-politics/2018/05/even-after-issuing-a-correction-noel-francisco-is-still-misleading-the-supreme-court-about-the-muslim-ban.html [https://perma.cc/ Z4A2-RFLJ]. He was also heavily criticized for how he litigated a controversial dispute over access to abortions by minors in immigration detention.10×10. See, e.g., Marty Lederman & David Luban, Who’s on Ethical Thin Ice in the Hargan v. Garza Abortion Case?, Balkinization (Dec. 31, 2017, 1:36 PM), https://balkin.blogspot.com/2017/12/whos-on-ethical-thin-ice-in-hargan-v_31.html [https://perma.cc/53CX-QFDP]. Scholars from across the political spectrum have accused the government of “astounding” conduct in changing its litigating position in a dizzying array of high-profile cases (changes that the Solicitor General would, by tradition, have been involved in approving).11×11. Jonathan H. Adler, Justice Department Revises Its Position in Texas ACA Case, Reason: Volokh Conspiracy (Mar. 25, 2019, 9:48 PM), https://reason.com/2019/03/25/justice-department- revises-its-position [https://perma.cc/QK8Y-JVMW]; see also Nicholas Bagley, Why Trump’s New Push to Kill Obamacare Is So Alarming, N.Y. Times (Mar. 27, 2019), https://nyti.ms/2V5hwUI [https://perma.cc/467T-DDHP]. And critics have argued that the Office of the Solicitor General (OSG) under Solicitor General Francisco’s watch has filed an unprecedented number of requests for emergency or extraordinary relief from the Justices, asking the Court (1) to hear certain appeals before the lower courts have finished ruling; (2) to halt the effect of lower court rulings pending the Supreme Court’s review; or (3) to jump over the courts of appeals and directly issue writs of mandamus to rein in perceived abuses by different district courts.12×12. See, e.g., Joshua Matz, The Justice Department’s New Tactic: Leapfrog Judicial Process and Go Straight to the Supreme Court, Wash. Post (Nov. 12, 2018), https://wapo.st/2qGgJMy [https:// perma.cc/5LRG-SB42]. Emergency relief includes applications for stays or injunctions under 28 U.S.C. § 2101(f) (2012) and Sup. Ct. R. 23. Extraordinary relief includes petitions for writs of certiorari “before judgment” under 28 U.S.C. §§ 1254(1) and 2101(e) and Sup. Ct. R. 11; and petitions for “extraordinary writs” under 28 U.S.C. §§ 1651 and 2241(a) and Sup. Ct. R. 20.

There is a veritable mountain of scholarship and popular commentary on the Solicitor General’s role and relationship with the Supreme Court.13×13. See, e.g., Caplan, supra note 6; Salokar, supra note 3; Michael A. Bailey et al., Signals from the Tenth Justice: The Political Role of the Solicitor General in Supreme Court Decision Making, 49 Am. J. Pol. Sci. 72, 82–83 (2005); Neal Devins, Unitariness and Independence: Solicitor General Control over Independent Agency Litigation, 82 Calif. L. Rev. 255, 280–320 (1994); Timothy R. Johnson, The Supreme Court, the Solicitor General, and the Separation of Powers, 31 Am. Pol. Res. 426, 444–46 (2003); Stephen S. Meinhold & Steven A. Shull, Policy Congruence Between the President and the Solicitor General, 51 Pol. Res. Q. 527, 535 (1998); Richard L. Pacelle, Jr., Amicus Curiae or Amicus Praesidentis? Reexamining the Role of the Solicitor General in Filing Amici, 89 Judicature 317, 317–18 (2006); Jeffrey A. Segal, Supreme Court Support for the Solicitor General: The Effect of Presidential Appointments, 43 W. Pol. Q. 137, 147–50 (1990). But virtually none of it has addressed this last phenomenon, even as more attention is being paid to the Court’s “shadow docket,” that is, the significant volume of orders and summary decisions that the Court issues without full briefing and oral argument.14×14. See William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1, 3–5 (2015). This Essay aims to fill that gap.

Part I briefly introduces the statutes, rules, and case law governing the three most common forms of emergency and extraordinary relief in the Supreme Court. Part II then summarizes the instances (through the end of September 2019) in which the Solicitor General has sought such relief since the beginning of the Trump Administration — and contrasts them with such requests from the Solicitors General who served during the eight-year tenures of Presidents George W. Bush and Barack Obama. As Part II explains, the data are conclusive: Solicitor General Francisco has indeed been far more aggressive in seeking to short-circuit the ordinary course of appellate litigation — on multiple occasions across a range of cases — than any of his immediate predecessors. To take one especially eye-opening statistic, in less than three years, the Solicitor General has filed at least twenty-one applications for stays in the Supreme Court (including ten during the October 2018 Term alone).15×15. A list of all of the relevant filings by the Solicitor General from January 20, 2001, through September 30, 2019, is provided in the Appendix. See infra Appendix; see also infra note 61 (describing the methodology utilized to identify the relevant filings). During the sixteen years of the George W. Bush and Obama Administrations, the Solicitor General filed a total of eight such applications — averaging one every other Term.16×16. See infra p. 133; see also infra Appendix, Table 3. The government has also used the threat of seeking such relief from the Justices in efforts to encourage lower courts to resolve pending cases quickly (and, in some cases, to rule in a specific way). See, e.g., infra p. 141.

At first blush, these requests have had mixed success. The Court has turned away or sidestepped each of the mandamus requests, and it has split over the stay applications, granting some in full, some in part, and denying others.17×17. See infra Appendix, Table 1 (documenting the dispositions). If the relevant metric is therefore whether the Court is granting all (or even most) of the government’s requests for emergency or extraordinary relief, it’s easy to conclude that, for the most part, the Solicitor General’s new aggressiveness has not succeeded. In that respect, the Solicitor General’s middling success rate may well mirror the Trump Administration’s overall success rate on having petitions for certiorari granted — where, as Adam Feldman has documented, it has not fared as well as its predecessor.18×18. Adam Feldman, Comparing Cert Stage OSG Efforts Under Obama and Trump, Empirical SCOTUS (June 5, 2019), https://empiricalscotus.com/2019/06/05/cert-stage-osg/ [https://perma.cc/ 5S2Y-Y86M].

And yet, as Part II concludes, the net effect of the Court’s actions in most of these cases has left the Solicitor General with most of what he has asked for, generally leaving the specific federal policy under challenge in place (or halting complained-of discovery) pending the full course of appellate litigation. And even in the instances in which that has not been the case, the Court’s denial of relief has come summarily and with no public opprobrium — no suggestion from the Court that the Solicitor General is abusing his unique position, taking advantage of his special relationship with the Court, or otherwise acting in a manner unbecoming of the office he holds. Indeed, almost every time the Solicitor General has lost with prejudice, multiple Justices have dissented.19×19. See, e.g., infra p. 140. Thus, although the Court may not be acquiescing in the specific requests the Solicitor General is making, it is acquiescing, at least publicly, in their frequency.

As Part III argues, the Court’s acquiescence is most likely a reflection of two related doctrinal shifts: First, a majority of the Justices now appear to believe that the government suffers an irreparable injury militating in favor of emergency relief whenever a statute or policy is enjoined by a lower court, regardless of the actual impact of the lower court’s ruling — or the harm the statute or policy would cause if allowed to go into effect. Second, and as a result, the conclusive consideration in such cases has become the government’s likelihood of success on the merits. Increasingly, the Justices appear to be calibrating their threshold decisions so that the status quo pending the rest of the litigation reflects what they expect the outcome to be if and when the merits reach the Court and the Court reaches the merits. With a newly solidified bloc of five conservative Justices, it is not exactly surprising that a Republican administration would generally fare well on those terms.

But insofar as this description is accurate, it is not obvious that it is a positive development. Among other things, such an approach is radically out of kilter with the Court’s approach to the rest of its docket. The Justices have repeatedly emphasized, especially lately, that “[o]urs is ‘a court of final review and not first view,’”20×20. Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 201 (2012) (quoting Adarand Constructors, Inc. v. Mineta, 534 U.S. 103, 110 (2001) (per curiam)). Some variation on this sentiment appeared in eleven different opinions during the Court’s October 2018 Term alone. See Mitchell v. Wisconsin, 139 S. Ct. 2525, 2546 (2019) (Sotomayor, J., dissenting); United States v. Haymond, 139 S. Ct. 2369, 2385 (2019); Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019); PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., 139 S. Ct. 2051, 2056 (2019); Mont v. United States, 139 S. Ct. 1826, 1839 n.4 (2019) (Sotomayor, J., dissenting); Herrera v. Wyoming, 139 S. Ct. 1686, 1701 n.5 (2019); Thacker v. Tenn. Valley Auth., 139 S. Ct. 1435, 1443 (2019); Frank v. Gaos, 139 S. Ct. 1041, 1046 (2019); Timbs v. Indiana, 139 S. Ct. 682, 690 (2019); Moore v. Texas, 139 S. Ct. 666, 674 (2019) (Alito, J., dissenting); United States v. Stitt, 139 S. Ct. 399, 407 (2018). and for good reason. By waiting for most cases to go through multiple layers of review by lower courts (and, often, multiple cases going through those multiple layers), the Court gives itself the benefit of multiple rounds of briefing and argument — and, usually, lower court rulings — on which to base decisions to grant certiorari and, if necessary, analysis of the merits. To abandon this norm only in cases in which the federal government is the complaining party is to invite serious objections grounded in fairness and equity — and to necessarily tilt the Court’s limited resources toward an undoubtedly important, but importantly narrow, class of disputes. Worse still, such a shift gives at least the appearance that the Court is showing favoritism not only for the federal government as a party, but for a specific political party when it’s in control of the federal government.

Even then, such an approach also depends upon the accuracy of the Justices’ predictive judgments. It assumes that further development of the record or airing of the legal disputes in the lower courts won’t materially change the nature of the case that the Justices believe they are resolving. But there are multiple recent examples to the contrary — in which the Justices’ early intervention on the government’s behalf turned out to have been premature thanks to subsequent developments that rendered grants of emergency or extraordinary relief unnecessary, if not affirmatively unwarranted. Allowing months (if not years) of government policy to be shaped solely by the Justices’ unwritten, subjective predictions about how the litigation is likely to unfold is troubling at best — especially when it comes at the expense of extensive written rulings by lower court judges who are, of necessity, far closer to the facts and the parties.

At a minimum, all of this yields two separate conclusions: First, critiques of the Solicitor General for this newfound aggressiveness are at least somewhat misdirected, given the Court’s own role in tolerating it. The Solicitor General has certainly not been a neutral bystander to these developments, but it is the Court, first and foremost, that is responsible for enabling (if not affirmatively encouraging) the Solicitor General’s unprecedented behavior. Second, it would behoove the Justices to reflect more holistically on their responsibility for this trend — and the longer-term consequences of abandoning the view that one of the Solicitor General’s foremost responsibilities is to “exercise restraint in invoking the Court’s jurisdiction.”21×21. Waxman, supra note 1.

 

 

 


* A. Dalton Cross Professor in Law, University of Texas School of Law. I am indebted to the editors of the Harvard Law Review for the invitation to write this Essay and their helpful discussions and suggestions along the way; to Will Baude, Joan Biskupic, Adam Feldman, Josh Geltzer, Linda Greenhouse, Tara Leigh Grove, Lindsay Harrison, Rick Hasen, Marty Lederman, Sandy Levinson, Leah Litman, Joshua Matz, H.W. Perry, Mila Sohoni, David Vladeck, Karen Vladeck, and participants in a faculty colloquium at the University of Texas School of Law for incisive and insightful feedback; and to Matt Steinke of the Tarlton Law Library and Alex Holland and Rachael Jensen, University of Texas School of Law Class of 2020, for exceptional research assistance