Academic highlight: Too much of a good thing?
on Jan 28, 2014 at 10:30 am
Should the Solicitor General’s office cut back on its participation in Supreme Court cases? In a recent article, Michael Solimine argues that the Office of the Solicitor General should limit its involvement to cases in which the interests of the United States are directly affected, as opposed to cases concerning the “broader policy agenda” of the administration.
The proposal would mark a considerable shift in the traditional role of the Solicitor General. Solimine begins by noting that the SG’s Office is both a “very active” and “extraordinarily successful” litigant. The SG participates in well over half the cases on the Court’s docket each Term as either a party or an amicus, and the Justices appear to give the office’s views greater weight than those of other litigants. The Court often rules in the SG’s favor, and frequently cites and discusses the SG’s briefs in its opinions, which in turn enables the SG’s Office to shape legal doctrine. As Solimine acknowledges, many scholars have lauded the SG’s active role in Supreme Court litigation, noting that the SG is an expert and unbiased source of information for the Court.
But Solimine challenges the conventional wisdom, arguing that the SG too often participates in cases in which the government’s interest is attenuated. He asserts that “recent SGs have frequently filed amicus briefs in cases that approach the outer boundaries of federal governmental interests,” citing examples such as Turner v. Rogers (addressing the procedural safeguards in the collection of child support) and J.D.B. v. North Carolina (concerning the right to counsel in juvenile cases). Solimine further argues that the SG should get significantly less deference in cases that do not directly affect the federal government, arguing by analogy to the differences between Chevron and Skidmore deference. When the executive’s interest are directly at stake — for example, in a case affecting national security — the SG’s briefs should get the stronger Chevron deference, but when the government’s interests are more attenuated, its briefs should be considered only for their power to persuade, akin to the Skidmore level of deference granted to government agencies in some cases.