Much has been written about the role of the so-called Tenth Justice, otherwise known as the Solicitor General.  In a recent article, Margaret and Richard Cordray report that over the last thirty years the Solicitor General’s office has dramatically reduced the number of cert. petitions it files each Term "“ a development that they believe has significantly contributed to the Court's shrinking docket.

The Cordrays found that the Solicitor General now files approximately 15 cert. petitions each Term, down from an average of 50 cert. petitions during the 1980s.  As has been widely discussed on SCOTUSblog and elsewhere, the Court's caseload has declined dramatically since the mid-eighties, contracting from an average of 170 cases per Term in the mid-1980s to 80 cases per Term during the Roberts Court.  Although the Cordrays acknowledge that the "causal relationship is murky," they argue that the Solicitor General's reluctance to file cert. petitions has had a “direct and independent impact” on the Court’s docket.  And they are critical of the Solicitor General's decision to remain on the sidelines at the cert. stage.  By doing so, they contend that the Solicitor General’s office has ceded its influence over the Supreme Court's agenda to aggressive private litigators, who have had greater relative success in persuading the Court to take their cases in the Solicitor General’s absence.

The Cordrays also make some interesting observations about the Solicitor General's changing role in merits litigation.  Since 1994, that office has participated in an average of 75% of all merits cases each Term, up from 60% in the 1950s through the 1980s.  But the Solicitor General is now much more likely to appear as amicus curiae than as a party to litigation, a trend that is of course related to its diminished role at the cert. stage.  The Cordrays report that the Solicitor General is highly successful in that new role, supporting the winning party close to 90% of the time during the first few years of the Roberts Court–a finding that will come as no surprise to Court watchers.

Posted in Academic Round-up

Recommended Citation: Amanda Frost, Academic round-up, SCOTUSblog (Jun. 21, 2011, 11:37 AM), http://www.scotusblog.com/2011/06/academic-round-up-72/