The Solicitor General’s report card

The SCOTUSblog stat pack contains a treasure trove of information about the Court’s Term.  But it doesn’t address the federal government’s record before the Court – and two competing narratives are being advanced to fill that vacuum.  Some say the Court repeatedly and definitively rejected Obama administration overreach.  Others claim that the SG’s winning percentage climbed back to its traditional high level.

Let’s look at the facts.

The SG participated in 58 of the 72 cases decided on the merits (treating multiple cases decided in a single opinion as one case) – 17 as a party, and 41 as an amicus.  I’d categorize 71% as wins, and 29% as losses (see the table at the end of this post).  Breaking down those totals, the win rate in party cases was 61% and in amicus cases was 77%.

Those numbers are well within the traditional 60-80% winning percentage for the SG’s office (as is the gap between the party and amicus win rates).  And 71% far exceeds the 52% win rate that Alan Morrison calculated for the 2011 Term.

But maybe the numbers mask the real story.  How did the government do in the “big” cases?

That’s an even more subjective judgment, of course.  But there too, the SG’s office can be quite proud of its achievements this Term.

The two EPA Clean Air Act cases are huge wins for the government – clearly the biggest administrative law decisions of the Term.  On the criminal side, Abramski v. United States (the gun “straw purchaser” case) has to count as an important victory.  In statutory interpretation, Lawson v. FMR LLC – involving the scope of the Dodd-Frank Act’s whistleblower protection – and Halliburton v. Erica P. John Fund – in which the Court left in place the Basic v. Levinson decision that provides the underpinning for securities class actions – have to be counted as very important victories.  (Although the Halliburton judgment went against the government, I’ve explained why the decision is a victory for the side the government supported.) And the Court largely adopted the government’s recommended approach in Town of Greece v. Galloway, in which the SG supported the constitutionality of prayer at the beginning of legislative sessions because of his obligation to defend Congress’s practice of doing just that.

There were, of course, some clear losses:  McCutcheon v. Federal Election Commission, the campaign finance case, and Riley v. California and United States v. Wurie, the cellphone search cases.

But several of the other “big” cases in which the bottom line of the Court’s decision went against the government inflicted little permanent damage on the federal authority that the SG was defending.  This was a remarkable achievement given the Court’s predisposition with respect to many of these issues, reflected in its own recent precedents.

In Bond v. United States, for example, the Court simply construed the statute not to reach the alleged conduct, and it declined to address far-reaching questions regarding the scope of the federal government’s treaty power, as well as its authority to enact laws to implement treaty provisions.  (Interestingly, the Bond prosecution occurred during the Bush administration – so that the current SG was defending the prior administration’s actions.)

In McCullen v. Coakley, the abortion protest case, and Harris v. Quinn, the public employee union case, the Court ruled against the government’s position on the narrow grounds, rejecting the broader arguments advanced in the cases that would have entailed overruling important precedents – indicating that the SG was quite effective in protecting his client against draconian outcomes.  The same is true in National Labor Relations Board v. Noel Canning, in which the Court’s decision simply restores the recess appointment power to what most observers believed it to be before President Obama acted on the basis of a significantly more expansive view of his authority , saving the Obama administration from the very real possibility that the president’s new interpretation would produce a “boomerang” effect significantly diminishing the scope of the president’s authority under that provision.

Burwell v. Hobby Lobby – which has been seized upon by political spinners in both parties and, as a result, is perhaps the most misrepresented Supreme Court decision of the last several years – fits this same mold.  The Court majority ruled narrowly.  First, it assumed that the compelling interest standard was satisfied; as Justice Kennedy stated in his concurring opinion:  “It is important to confirm that a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees.”

With respect to least restrictive means, the Court’s opinion relies on the unique fact that the government had already offered an accommodation to nonprofit organizations with the same religious objection as the Hobby Lobby plaintiffs:  “HHS itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs.”  Again, Justice Kennedy makes clear in his opinion that this narrow fact pattern is critical to his decision:  “RFRA is inconsistent with the insistence of an agency such as HHS on distinguishing between different religious believers—burdening one while accommodating the other—when it may treat both equally by offering both of them the same accommodation.”

The Court’s ruling thus in no way limits the government’s ability to satisfy the compelling interest test or to demonstrate the unavailability of a less restrictive means in circumstances in which the government has not voluntarily developed such an accommodation.  And the Court’s distinction of anti-discrimination laws and health insurance requirements relating to vaccination and other medical services further confirms the limited nature of the ruling. Hobby Lobby does open the door to other religious accommodation claims, but it does not limit the government’s ability to defeat those claims under the compelling interest and least restrictive means tests.

Winning is always best, but sometimes it just isn’t possible given the views of the Court.  In that situation, the mark of a successful advocate is his or her success in limiting the damage.  A Term with big wins for the government and losses that for the most part are narrowly cabined must be characterized as a highly successful Term for the SG and his colleagues.

Wins[*]		Losses
Party Cases	United States v. Woods Kaley v. United States United States v. Apel Scialabba v. Cuellar de Osorio EPA v. EME Homer City United States v. Quality Stores United States v. Castleman Abramski v. United States Paroline v. United States Utility Air Regulatory Group v. EPA Robers v. United States Wood v. Moss Loughrin v. United States United States v. Clark	McCutcheon v. FEC Bond v. United States Burrage v. United States Rosemond v. United States NLRB v. Noel Canning Marvin M. Brandt Revocable Trust v. United States Burwell v. Hobby Lobby Stores United States v. Wurie (with Riley v. California) Ford Motor Co. v. United States
Amicus Cases[†]	Daimler AG v. Bauman Kansas v. Cheever Sandifer v. United States Steel Corp. Walden v. Fiore Medtronic v. Mirowski Family Ventures LLC Town of Greece v. Galloway Lawson v. FMR LLC Fernandez v. California Michigan v. Bay Mills Indian Community Northwest v. Ginsberg Air Wisconsin v. Hoeper Lozano v. Alvarez Executive Benefits v. Arkinson Petrella v. MGM Inc. Navarette v. California Highmark Inc. v. Allcare Health Management Systems Octane Fitness LLC v. Icon Health & Fitness Inc. Plumhoff v. Rickard Halliburton v. Erica P. John Fund Alice Corp. v. CLS Bank International Fifth Third Bancorp v. Dudenhoeffer Susan B. Anthony List v. Driehaus ABC Inc. v. Aereo Inc. CTS Corp. v. Waldburger Nautilus Inc. v. Biosig Instruments Lane v. Franks Limelight Networks Inc. v. Akamai Technologies	Chadbourne & Park LLP v. Troice Heimeshoff v. Hartford Life Insurance BG Group v. Argentina Law v. Siegel McCullen v. Coakley Harris v. Quinn POM Wonderful LLC v. Coca-Cola Co. Argentina v. NML Capital Ltd.

 

[Disclosure:  Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel on an amicus brief in support of the Erica P. John Fund and on an amicus brief in support of Harris.  However, the author of this post is not affiliated with the firm.]