Academic highlight: Black and Owens on SG decision making
on Sep 21, 2012 at 10:29 am
Although the Office of the Solicitor General (OSG) is more successful than the average litigant at both the cert. and merit stages, its win rate does not prove that its status influences the Court’s decision making. As Ryan Black and Ryan Owens point out in their new book, The Solicitor General and the United States Supreme Court: Executive Branch Influence and Judicial Decisions (Cambridge University Press 2012), the OSG’s repeated victories might be due to factors such as strategic case selection, ideological compatibility with the Justices, and greater resources and experience, rather than the OSG’s inherent ability to influence outcomes. Black and Owens seek to resolve the issue through empirical studies that compare the OSG’s performance with that of similar opponents.
For instance, Black and Owens examine whether the Court’s opinions are more likely to borrow language from OSG briefs than non-OSG briefs of similar quality, and how the OSG’s use of precedent affects the Court’s citations to, and discussions of, those cases. Most interesting to me was Chapter 5, in which the authors compare the probability of an OSG victory with that of equally matched opponents, controlling for attorney experience and resources, among other factors. Black and Owens conclude that “[s]imply being affiliated with the OSG . . . makes these attorneys more likely to win.”
Of course, the problem here is ensuring that the comparison is truly apples to apples. Black and Owens explain that they employ a “unique matching technique” to seek out “lawyers and cases that are as identical as possible in terms of experience before the Court, resources, ideological position vis-a-vis the Court, and the like.” By controlling for these factors, Black and Owens hope to isolate the effect of the OSG’s status on the Court’s decision making. (Spoiler alert: the authors ultimately conclude that the “OSG does not simply succeed before the U.S. Supreme Court, it actually influences the Supreme Court throughout its decision-making process.”)
Even for those who believe that empirical research cannot tell the whole story, the book provides an informative account of executive-judicial interactions through the use of advocacy at the Supreme Court. It should also make all those who have lost a case against the OSG feel a little bit better.