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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.



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



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.]

[*] Categorizing the decision as a “win” or a “loss” is difficult in some cases because of multiple issues; I’ve based these judgments on whether the government’s position prevailed on the lion’s share of the issues.

[†] Burt  v. Titlow is omitted because the Court did not reach the issues addressed in the SG’s amicus brief.

Recommended Citation: Andrew Pincus, The Solicitor General’s report card, SCOTUSblog (Jul. 2, 2014, 3:40 PM),