The Solicitor General Unbound: Amicus Curiae Activism and Deference in the Supreme Court
44 Pages Posted: 16 Aug 2012 Last revised: 7 Feb 2014
Date Written: August 15, 2012
This article addresses the confluence of two phenomena characterizing litigation in the United States Supreme Court. The Solicitor General represents the United States in the Court, and the SG has been extraordinarily successful as a litigant, and in supporting other successful litigants through the filing of amicus curiae briefs. Likewise, many interest groups, and the United States and state governments, have increasingly filed amicus briefs in Court cases. The SG participates as a party or an amicus in well over half of the cases decided on the merits by the Court, especially significant given the Court’s shrunken docket in recent decades. The Court often cites the SG’s amicus briefs, and requests the SG to file such briefs at the certiorari and merits stages. Given the high quality of the SG’s work in general, and the apparent helpfulness of the SG’s amicus briefs, many observers seem to approve of the status quo, and applaud the SG filing numerous amicus briefs, and their influence on the Court.
This article challenges the conventional wisdom with a jurisprudential critique of the current practices of the SG and the Court, focusing on the SG’s filing of amicus briefs in cases where the interests of the United States are attenuated, and on the Court’s inconsistent deference to these briefs. The article argues that the SG should only file amicus briefs in cases where the interests of the United States, and particularly of the executive branch, are directly affected, as opposed to cases concerning the broader policy agenda of an administration. The article next examines the deference sometimes given the SG’s amicus briefs in Supreme Court opinions. The Court has not been a model of consistency regarding this deference in certain categories of cases. In other cases it seems to treat the SG amicus brief as entitled to no greater deference than the amicus brief of any other interest group. Using as examples SG amicus briefs filed in recent Terms, the article proposes and applies criteria to constrain the SG in filing such briefs, and to guide the Court in giving appropriate deference to such briefs. Under these criteria the SG will still play a significant role in Supreme Court litigation, but that role will be limited to the particular interests of the executive branch.
Keywords: amicus briefs, Supreme Court, Solicitor General
JEL Classification: k10,k41
Suggested Citation: Suggested Citation