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Even so, Prelogar said she thinks the most important part of her job is the work she does before a case makes its way to the U.S. Supreme Court. That job requires her to decide which cases the government pursues while weighing input from multiple federal agencies and the presidential Cabinet, which includes the Vice President and the heads of 15 executive departments, who she noted do not always agree on a litigation stance.

"My client is the United States of America," she said. "It's not a particular person of the federal branch."

(Alf Niels Christian Ross was a Danish jurist, legal philosopher and judge of the European Court of Human Rights. He is best known as one of the leading figures of Scandinavian legal realism, “VI The Concept of Rights,” On Law and Justice On Law and Justice, pg online @ https://academic-oup-com.proxy.lib.umich.edu/book/36943/chapter/322234069 //pa-ef)

Now we can see that there is a crucial difference in meaning with respect to the word ‘protection’ in these two situations.  Static protection concerns the means of exerting pressure which can be applied against violations of the right. These means of exerting pressure can be effective to a greater or lesser degree, depending on the conditions under which infringement is punished, on the magnitude of the penalty, and on the conditions under which the rights holder can obtain a judgment providing for enforcement (vindication) or at least a judgment for damages. The more effective the sanctions, the better the protection of the right, that is, the higher the probability that the rights holder will in fact achieve undisturbed economic enjoyment of certain things which the legal order wishes to assign to him. It is obvious that this protection can never be absolute.  Dynamic protection, on the other hand, has nothing to do with sanctions. Here, the assurance in question is not an assurance that the legal rules (norms of conduct) are actually obeyed, but an assurance that, considered holistically, the acquirer of a right really will succeed to the legal position of his predecessor. In this situation, then, protection does not mean protection of an existing legal position, but protection of an acquirer’s expectation of being placed into such a position. According to circumstances, this protection can be absolute, since the legal order under certain conditions precludes any possibility of further discussion of the legal position as the result of a succession.

Of the mind, etc.: Freed from doubt or uncertainty, fixed, settled. Obs.

The legal question to be resolved by the court is whether the word "should"13 in the May 18 order connotes futurity or may be deemed a ruling in praesenti.14 The answer to this query is not to be divined from rules of grammar;15 it must be governed by the age-old practice culture of legal professionals and its immemorial language usage. To determine if the omission (from the critical May 18 entry) of the turgid phrase, "and the same hereby is", (1) makes it an in futuro ruling - i.e., an expression of what the judge will or would do at a later stage - or (2) constitutes an in in praesenti resolution of a disputed law issue, the trial judge's intent must be garnered from the four corners of the entire record.16 13 "Should" not only is used as a "present indicative" synonymous with ought but also is the past tense of "shall" with various shades of meaning not always easy to analyze. See 57 C.J. Shall § 9, Judgments § 121 (1932). O. JESPERSEN, GROWTH AND STRUCTURE OF THE ENGLISH LANGUAGE (1984); St. Louis & S.F.R. Co. v. Brown, 45 Okl. 143, 144 P. 1075, 1080-81 (1914). For a more detailed explanation, see the Partridge quotation infra note 15. Certain contexts mandate a construction of the term "should" as more than merely indicating preference or desirability. Brown, supra at 1080-81 (jury instructions stating that jurors "should" reduce the amount of damages in proportion to the amount of contributory negligence of the plaintiff was held to imply an obligation and to be more than advisory); Carrigan v. California Horse Racing Board, 60 Wash. App. 79, 802 P.2d 813 (1990) (one of the Rules of Appellate Procedure requiring that a party "should devote a section of the brief to the request for the fee or expenses" was interpreted to mean that a party is under an obligation to include the requested segment); State v. Rack, 318 S.W.2d 211, 215 (Mo. 1958) ("should" would mean the same as "shall" or "must" when used in an instruction to the jury which tells the triers they "should disregard false testimony"). 14 In praesenti means literally "at the present time." BLACK'S LAW DICTIONARY 792 (6th Ed. 1990). In legal parlance the phrase denotes that which in law is presently or immediately effective, as opposed to something that will or would become effective in the future [in futurol]. See Van Wyck v. Knevals, 106 U.S. 360, 365, 1 S.Ct. 336, 337, 27 L.Ed. 201 (1882).

The specifications in the drawings for the mini-piles stated that the capacity for the mini-piles was "to be" 6,000 or 8,000 pounds and that the length of the mini-piles was "to be" adequate to get into undisturbed soil to a depth adequate for obtaining the required capacity. The specifications in the project manual stated that the mini-piles "should" have a capacity of 4 tons and 3 tons, that the mini-piles "should" be driven to minimum depth of 25 feet, and that a grout bulb "should" be formed at the base of a mini-pile. Kenneth Winters, an expert in structural engineering, and Richard Anderson, an expert in geotechnical engineering, agreed with Steve Maranowski, plaintiff's president, that the specifications in the project manual, because those specifications used the word "should," were permissive and suggestions of what plaintiff could do to achieve the required capacity. However, the trial court, when it instructed the jury on how to interpret the contract, instructed the jury that it was to interpret the words of the contract by giving them their ordinary and common meaning. An ordinary and common meaning of the word "should" is that it denotes a mandatory obligation. See People v Fosnaugh, 248 Mich App 444, 455; 639 NW2d 587 (2001) (stating that "the word 'should' can, in certain contexts, connote an obligatory effect"); Merriam-Webster's College Dictionary (11th ed) (defining "should," in pertinent part, as "used in auxiliary function to express obligation, propriety, or expediency"). Accordingly, viewing the evidence in a light most favorable to defendant, reasonable jurors could have honestly reached different conclusions on whether the specifications in the project manual were mandatory and, because Maranowski admitted that plaintiff did not use grout bulbs and did not drive all the mini-piles at least 25 feet into the ground, whether plaintiff breached the contract. Morinelli, 242 Mich App at 260-261.

When a petition for certiorari is on the discuss list at a weekly conference and therefore ready for the Justices' ultimate decision, the Justices have several voting options.32 Most obviously, they can vote to grant in full or deny in full certiorari.33 However, they have several options that fall between these two extremes. For instance, sometimes the Justices believe that more information is necessary before they can reach a full decision to grant or deny certiorari, and they will therefore CVSG.34 If several petitions for certiorari raise the same issue, the Court may accept all of them “to address that issue more fully than a single case would allow them to do.”35 The Court may also choose to narrow the granting of certiorari by choosing one issue raised in the petition or posing an issue sua sponte to the parties.36

After the Court has granted certiorari, either in full or in part, the Court then decides between giving the petition full consideration and giving it summary consideration.37 For petitions granted full consideration, the Court will hear oral arguments, receive briefing on the merits from the parties, and issue “a decision on the merits with a full opinion explaining the decision.”38 If, instead, the Court gives a petition summary consideration, the petition may take two routes.39 Usually, in summary consideration, the Court issues a “GVR,” which entails granting certiorari (G), vacating the lower court decision (V), and remanding the case to the lower court for reconsideration (R).40 In the remainder of summary consideration petitions, the Court issues a per curiam opinion—a short, unsigned opinion on the merits.41

Third, the Solicitor General is often asked formally by the Supreme Court through a process referred to in the relevant jargon as "CVSG" (or "call for the views of the Solicitor General") to express his views on whether a pending petition for certiorari in a non-government case should be granted. In such instances, the Court is not seeking the advice of an advocate or a partisan, but rather of an officer of that court committed to providing his best judgment with respect to the matter at issue.

Given the delay caused by the long turnaround time at the Office of the Solicitor General, there is the question of whether a deadline should be imposed by the Court. While such an approach would provide greater predictability for parties and the Court, it is unlikely that the Court would take this step. First, and perhaps dispositive for this question, the SG is not a party in these cases, but rather is offering a service of the executive branch as a favor to the Court. Thus, it would be politically insensitive for the Court to require the SG to respond by a certain date. Second, any step by the Court to limit the amount of time available to the SG might be perceived as a criticism of the SG by the Court, potentially complicating the relationship between the two institutions.

Recently, Solicitor General Paul Clement himself weighed in on this issue in response to a party’s application to require an invitation brief to be filed within thirty days of the Court’s request.239 His response further illuminates the process taken by the SG following a CVSG and makes the case for an allowance of greater time for the Office to respond. As Clement writes:

I. Positional Consistency in Solicitor General Litigating Positions

Judicial stare decisis is in a state of flux in the Supreme Court. The doctrine, which states that the Court will stand by its precedents absent special circumstances, is anything but stable. To the contrary, the Justices have fragmented in their understanding of it. Justice Kagan has emphasized its centrality to the Court's role in case after case. 10Justice Kavanaugh has attempted to synthesize its basic elements into a new tripartite framework. 11Justice Gorsuch has found that it did not apply when a prior decision broke from earlier law and rested on the aberrant views of a single Justice. 12The Chief Justice has prominently embraced it, but simultaneously endorsed an escape hatch for precedent that itself departed from precedent. 13And Justice Thomas has virtually declared war on the doctrine, saying it should yield whenever the Court is sure that a prior decision is wrong. 14For a doctrine that aims to promote stability, predictability, and societal confidence "that bedrock principles are founded in the law rather than in the proclivities of individuals," 15the Court's inability to agree on the basic operation and scope of stare decisis is striking.

The bottom line, as the literature and in Table 6.1.1 in Appendix 6 show, is that the SG has the greatest success among litigants and great influence over Supreme Court decision making. The SG and the Court provide an unmatched example of synchronicity over a period of time. The signals that pass back and forth between the Court and the OSG are relayed quickly and apparently understood (Black and Owens 2012). The SG expanded its amicus activities in the wake of the Brown decision. In an information- poor or information- rich environment, the SG stands out as reliable and trustworthy. The Court needs information on the legal implications of a case. The SG can assist the justices in understanding the nature of the issues and available alternatives and in framing legal questions. Few clerks have mastered the issues before the Court. Indeed, many are only five years out of college. The solicitor general’s office has more resources and experience than the clerks. In particular, the deputies who specialize in particular issues frequently bring more expertise and knowledge to that area than most justices (Pacelle 2003).

Research discussed in the sections above highlights two important reasons for why we theorize the Court should CVSG to gain more information about executive preferences. First, justices pursue preferences, but they do so in a strategic manner. A means to establish policy attainments is to ensure the implementer of policy, the president, will enforce the Court’s decision. Understanding where the president stands allows the Court to make more calculated decisions about where in the policy space its ruling can successfully land. In publicly charged policy areas, the Court may be seeking a signal of executive support (such as in the Brown cases).2 Alternatively, the brief could cue the Court to outcomes that may bring potential sanctions. Because the Court wishes to see its policy implemented, and because the Court depends on institutional legitimacy, it wants to know of the possibility of threats to these goals.3

Second, and more simply, the justices care about making good policy. Indeed, Hausegger and Baum (1999, 182) demonstrate that the Court will ask Congress to review the legal sphere surrounding decisions in order to create good policy “as they see it.” Since the executive branch is responsible for implementation of policy, the Court may want to know about possible problems of implementation. The actors in the executive branch have the (greater) requisite expertise on implementation. Because we argue that the SOTU proxies the executive agenda, and this agenda often includes policy plans, an area receiving less attention may indicate one with less public information about the impacts of changing policy. Thus, in these areas, the Court may wish to CVSG to supplement its information.

We control for three additional SOP considerations. First, justices may be more likely to CVSG in cases that are highly salient, as such cases are likely to attract more political attention. That is, Congress may be more primed to override such cases. Similarly, we control for presidential approval, as popular presidents may be more able to battle Congress. Finally, we control for presidential tenure, as justices may be in more need of information when dealing with new and unknown presidents.

Of course, while we have theoretical reason to believe justices CVSG as a tool to pursue their policy preferences in a broader political environment, legal factors are also likely to influence the decision to CVSG. We begin by examining legal uncertainty. We posit that the SG’s information may be more useful to a justice when she is less certain about whether the likely merits outcome will be better for her than the status quo. That is, if a justice is perfectly indifferent about the policy outcome, any legal justification for granting or denying review may be dispositive. Justices also may CVSG to overcome uncertainty caused by their inexperience on the Court. Some scholars have argued that new justices require time to perfect their strategic calculations (Hagle 1993). During this learning period, justices may be more likely to CVSG to help them make better calculations. Finally, uncertainty can arise from the complexity of the case. Thompson and Watchell (2009), for example, find that the Court CVSGs in cases dealing with complex issues such as intellectual property. Accordingly, we control for all three versions of legal uncertainty.

Do justices likewise employ strategic tactical maneuvers to overcome congressional constraints? After all, Congress theoretically has a number of tools it can use to influence the Court, tools justices must consider when rendering decisions that might offend legislative sensibilities. Recent scholarship addressing the Court in a separation of powers context is decidedly mixed, however, with the weight of studies finding little to no evidence that justices modify their behavior due to potential SOP constraints (Segal 1997; Sala and Spriggs 2004; Spriggs and Hansford 2001). Still, there are theoretical reasons to believe that legislative preferences may influence justices. Therefore, we must look beyond existing approaches.

The approach we take here is to examine whether majority coalition justices positioned ideologically between Congress and the president seek to ensure that they can rely on the president’s veto in an ensuing battle with Congress. Justices can compel the Solicitor General (SG)—the lawyer for the United States and an executive branch official—to participate in a case in which she is not already involved. Our theory is that justices will Call for the Views of the Solicitor General (CVSG) to determine how willing the president will be to battle Congress over the Court’s decision.

To take a more institutional view of the role, the Solicitor General should consider consulting more broadly within the government when copyright issues are before the Court. It is, of course, understandable that OSG lawyers would listen closely to and heed the views expressed by lawyers from the Copyright Office with deep expertise in copyright law. But perhaps OSG should consider giving less weight to those views, given that the Court has so often rejected them in the substantive interpretation cases. Depending on the kind of case before the Court, lawyers or officials from the Federal Trade Commission, Federal Communications Commission, the Antitrust Division, the Office of Science and Technology Policy, the Council of Economic Advisors, the National Telecommunications and Information Administration, the National Institutes of Health, the Department of Education, the Institute of Museum and Library Services, the Smithsonian museums, and the Librarian of Congress, among others, may have different perspectives than the Copyright Office, the USPTO, USTR, and IPEC. While OSG routinely solicits views from multiple agencies, perhaps it should make more concerted efforts to understand how the Court’s resolution of copyright disputes will affect the broader publics served by various agencies and not just the views of IP agencies.

As impressive as OSG’s overall rate of amicus success has been, the most recent empirical study of OSG’s influence as amicus in the Court’s patent cases reports a success rate of 92%.369 This is consistent with findings of an earlier study showing that over a twenty-year period, “every single amicus brief authored by the United States in a Supreme Court patent case except one predicted the case outcome.”370 There was, moreover, an “impressive level of agreement” and a “high level of accord” between the Court and OSG in “high-level patent matters.”371

The absence of CVSG orders in patent cases is especially telling because CVSGs are thought to be issued where the Court believes the case for granting certiorari is close, the case is complex, and a component of the government may have some relevant expertise or interest in the issue.37 Patent cases are typically complex, and the PTO (a component of the government represented by the Solicitor General at the Court) has both great expertise in the patent system and a significant interest in assuring the system’s proper functioning.38 Thus, the absence of CVSGs prior to 1994 suggests that not only was the Court granting very few petitions for certiorari in patent cases, but it also was not seriously considering granting many such petitions.in the issue.37 Patent cases are typically complex, and the PTO (a component of the government represented by the Solicitor General at the Court) has both great expertise in the patent system and a significant interest in assuring the system’s proper functioning.38 Thus, the absence of CVSGs prior to 1994 suggests that not only was the Court granting very few petitions for certiorari in patent cases, but it also was not seriously considering granting many such petitions.

In what follows, we examine whether the SG influences the votes justices cast and whether there are limits on the SG’s influence. We undertake this task in the context of the Supreme Court’s agenda-setting process. More specifically, we examine how justices respond to SG recommendations to grant or deny review to cases, focusing on cases where the SG files briefs at the behest of the Court and those (less frequent) cases where the SG files such briefs on her own cognition. We are aided in this endeavor by a research design that contains three critical components. First, we theorize justices’ ex ante preferences in each case. After controlling for these prior beliefs, we can then employ archival data to compare their actual votes to their expected votes and, thereby, detect influence. Second, by focusing primarily (though not exclusively) on cases where the SG has been forced to participate, we largely remove the possible selection effects that would arise from a strategic SG getting involved only in cases she expects to win. And, finally, we address features that may limit the amount of influence the SG wields.

We witness two important results. First, we find strong support for SG influence. Justices who completely disagree with the SG nevertheless follow her recommendations 35 percent of the time, a number we take to be powerful evidence of influence. Second, we discover that the SG’s influence is bounded by law. Justices of all ideological persuasions—even ideological allies—are significantly less likely to follow an SG recommendation that contradicts the weight of the law. This finding highlights the importance of law in judicial decision making and suggests that researchers should continue to look for evidence of legal influence elsewhere. In short, our results suggest that SGs will be most influential when they balance the often competing features of law and policy (Pacelle 2003; Wohlfarth 2009).

What is visible understates the closeness and the specialness of the connections between the Court and the SG’s office, which become clearer the more you learn about the behind-the scenes dealings between them. As Vladeck wrote in the Harvard Law Review in 2019, “the Court’s rules and traditions both formally and informally privilege the Solicitor General as the de facto head of the Court’s bar—and show special solicitude to the Solicitor General across a constellation of considerations.”46 With the SG and the SG’s office often functioning as counselors to the Court, the Court favors them.

Still, those visible markings make clear how much the Court favors the SG and the SG’s office. By every measure that matters—the percentage of petitions for writs of certiorari from the SG that the Court has accepted; the percentage of cases the SG has won as a party; the percentage of cases the SG has won as an amicus curiae, or friend of the Court; the percentage of the SG’s requests to make oral arguments as an amicus that the Court has granted; the increase in success of parties other than the government when the SG is an amicus on behalf of those parties—the record of the SG’s office, going back generations, is much better than any other advocate’s.47

Francis Biddle, SG from 1940 to 1941 and Attorney General from 1941 to 1945, put it well in his 1962 memoir: “The Solicitor General has no master to serve except his country.”37 The SG has been permitted his independence largely because of the belief, Biddle wrote, that “the ethic of his law profession framed in the ambience of his judgment and experience” should be the SG’s only guide.38 As Simon E. Sobeloff, SG from 1954 to 1956, wrote during his tenure, “My client’s chief business is not to achieve victory, but to establish justice.”39 Waxman said, in 1998, “Ultimately, it is the responsibility of the Solicitor General to ensure that the United States speaks in court with a single voice—a voice that speaks on behalf of the rule of law.”40

The SG’s independence and the responsibility it has rested on have been understood to justify notable deference from the Supreme Court, and the Court has shown that deference. It is not formal deference, amounting to a duty, as, for example, the Court has a duty under the United States Constitution’s Article III, Section 2, to “have original jurisdiction” in “all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party.”41 (In those cases, the Court functions as a trial, or fact-finding, court as well as an arbiter about the law’s application to the facts, as opposed to its usual role of hearing appeals in cases it chooses to hear.) 42 But it has been significant because of the symbiosis between the SG and the Court—interaction between two different entities in close association, usually to the advantage of both. Independence has allowed the SG’s office to resist giving in to pressure from political appointees in the Justice Department by saying that, if the SG’s office took a politically motivated position those appointees pressed, the Court would criticize the office and undermine its credibility.

The solicitor general ‘has developed a unique relationship with the Supreme Court, one in which it serves as an adviser as well as an advocate.’4 The Solicitor General fulfills his role as the Court’s adviser and advocate by responding to the Court’s invitation to express the views of the United States in given petitions for certiorari.5 Here, the Solicitor General acts as a special type of amicus because the Solicitor General is not a party to the proceeding nor opining on behalf of one of the parties but rather acting as a sort of ‘partner’ to the Justices.6 When the Justices believe that, before they can grant or deny a petition for certiorari, they would like another opinion of the merits of a petition, they ‘call for the views of the solicitor general,’ known colloquially as CVSG.7 Because of the enormous amount of trust that the Court holds in the Solicitor General’s office, the Court values the Solicitor General’s opinion to ‘provid[e] [the] best judgment with respect to the matter at issue.’8 However, this unique relationship of trust between the Court and the Solicitor General such that the Solicitor General’s opinion is treated as tantamount to the opinion of a tenth justice did not develop until the 1950s.

This paper will examine how the CVSG process developed. Part II will provide general background information, explaining the office of the Solicitor General, the Supreme Court practice of granting certiorari and the reasons for doing so, and the process by which the Supreme Court invites the Solicitor General to express the opinion of the United States. Part III will examine the environment that laid the groundwork for the CVSG process to emerge: the personal relationships that existed between individual justices and attorneys in the Office of the Solicitor General and the political climate that instigated a political partnership between the Court and the Solicitor General. Finally, Part IV will argue that the CVSG process represents the culmination of the mutually beneficial relationship between the Court and the Solicitor General and then describe the first petitions for certiorari where the Supreme Court exercised its option to CVSG.