The counterplan solves --- must call for the views of the CVSG BEFORE we do the plan

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.

II. Background Information

a. The Solicitor General

Congress created the Office of the Solicitor General with the Federal Judiciary Act of 1870.10 As an officer within the Executive branch, the President appoints the Solicitor General and the Solicitor General is then subordinate to both the President and the Attorney General.11 In appointing the Solicitor General, the President looks at the same criteria that affect the nomination of a Supreme Court Justice – well respected, legal experience, and likely shares a similar legal philosophy of the President’s administration.12 Because he is formally a member of the Department of Justice, his office is in the Department’s building.13 However, as a testament to the Solicitor General’s dual roles as government lawyer and adviser to the Supreme Court, he also has permanent chambers in the Court.14

‘Politics and law are at the intersection of the solicitor general’s responsibilities.’15 The Solicitor General must be ‘learned in the law’ and is entrusted with representing the interests of the United States, assisting the attorney general, and ‘translating the policies of the government, the president, and the executive branch into litigation.’16 The Solicitor General decides which cases that the government lost in lower courts will be appealed to the Supreme Court, controls government litigation at the Supreme Court, advocates as amicus curiae in cases where the government is not a party, and advises the Supreme Court on petitions for certiorari. 17 Although the Solicitor General experiences some political pressure from the President and his administration, the tradition of independence of the Solicitor General’s Office helps to ensure that Solicitor General largely retains autonomy from political sways.18 Indeed, the attorney general does not usually attempt to control the litigation strategy of the solicitor general.19 Instead, the Solicitor General’s agenda is structured by the Supreme Court’s agenda; as the Supreme Court’s power and docket changes, so does the role of the Solicitor General.20 Not only is the Solicitor General’s agenda structured around the Supreme Court, but the Solicitor General helps to set that of the Court as ‘[a] principal chore of the Solicitor’s office is to help the Supreme Court set its docket by screening petitions for certiorari.’21

b. Grant, Deny, or CVSG: The Certiorari Process

“A petition for certiorari is, stripping away the legal verbiage, a request to the Supreme Court to hear and decide a case that the petitioner has lost either in a federal court of appeals or in a state supreme court.”22 Parties can file petitions for certiorari throughout the year and the petitions therefore generally accumulate at between eighty to one hundred per week.23 When a petition for certiorari first arrives at the Court, it is sent to the “cert pool,” which was first created at the suggestion of Justice Powell in 1972.24 The “cert pool” consists of the law clerks of the participating Justices, who collectively pool their law clerks to divide the petitions for certiorari among themselves.25 The law clerks divide the thousands of petitions so that a law clerk reads every petition, assesses the worthiness of the petition for the Court‟s review, and writes an annotated certiorari memo “outlining the facts and contentions” of the petition.26 The law clerks circulate the annotated certiorari memos for each petition for certiorari to the participating Justices, who then review the memos and make a preliminary decision on how to vote on the petition.27 Before the Justices meet collectively to determine the fate of a petition for certiorari, the Chief Justice circulates a “discuss list,” a list of the petitions that he would like to discuss with the other Justices.28 The associate justices are also free to add petitions to the “discuss list” and any petition for certiorari not discussed at a conference is denied certiorari without a vote.29 For much of the year, except the Court‟s recess between July and the last week of September, the Justices vote on the petitions for certiorari in weekly conferences held in a room next to the chief justice‟s chambers.30 These conferences where the Justices vote on petitions for certiorari are only attended by the justices because “they are not open to the public or to other Court personnel.”31

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, there are several options for the Justices that fall between these two extremes. For instance, sometimes the Justices feel that more information is necessary before they can reach a full decision to grant or deny certiorari and 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 or 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, vacating the lower court decision, and remanding the case to the lower court for reconsideration.40 In the remainder of summary consideration petitions, the Court issues a per curiam opinion, a short, unsigned opinion on the merits.41

When hearing and deciding cases on the merits, the Court operates by majority rule.42 However, when making certiorari decisions, the historical practice of the Court, called the “rule of four,”43 is to require four out of nine votes from the Justices.44 The Court has never been very forthcoming with why one petition is deemed worthy of certiorari and another not worthy; instead the Court advises that “certiorari will be granted only for compelling reasons.”45 Those compelling reasons, though “neither controlling nor fully measuring the Court‟s discretion,” are described in Rule 10 of the Rules of the Court.46 The criteria described in Rule 10 for evaluating a petition for certiorari are: (1) a conflict between two appellate courts, often called a circuit split; (2) a conflict between the court at issue and Supreme Court precedent; (3) importance of the issues in the petition; and (4) procedural posture of the case.47 Although these criteria for certiorari may seem somewhat imprecise and vague, it has long been certain that “[t]he Supreme Court is not, and never has been, primarily concerned with the correction of errors in lower court decisions.”48

c. The CVSG Process: Calling for the Views of the Solicitor General “[T]he group of lawyers that has the greatest impact on the Court is the set of about two dozen who work for the Office of the Solicitor General in the Justice Department.”49 Indeed, when the Supreme Court calls for the views of the Solicitor General, the solicitor general becomes “an important ally for the justices, who rely on the office’s expertise to control their docket and help structure doctrinal development.”50 Essentially, the Supreme Court is requesting the Solicitor General’s opinion on a petition for certiorari because the Justices believe that the petition is important and potentially worthy of certiorari but need more information, in the form of another legal opinion, before they can make a final decision.51 In the CVSG role, the Solicitor General puts aside any partisan advocacy concerns that the Office may otherwise have in order to “assist in the orderly development of the law and to insist that justice be done even where the immediate interests of the federal government may not appear to benefit.”52 The Solicitor General provides “a less partisan review of the law and a survey of existing precedent.”53 Traditionally, even where government interests would prefer otherwise, the Solicitor General does not hesitate to advise the Justices that the Court lacks jurisdiction over an issue raised in a petition or that the petition simply does not satisfy the Court’s criteria for granting certiorari.54 There are a number of circumstances where the Court will CVSG: a federal interest is involved, there is a new issue without established precedent, a change in the development of an issue, or an evolving issue has become more complicated and attached to other issues.55 Former Solicitor General Kenneth Starr described the purposes of the CVSG process as follows

The CVSG has a two fold purpose. First, it serves to guide the Court or assist the Court as to whether the case is important enough to merit review. Second, it serves to offer the position of the U.S. on the merits of the issue. With respect to the former . . . It is a courtesy to the government. With respect to the latter – the position of the U.S.- there we followed the professional responsibility of assimilating the views of different parts of the Justice Department and the agencies and putting forth the best arguments.56

The high rate of correlation between the Solicitor General’s certiorari recommendations and the Court‟s certiorari decisions is a testament to the Court’s trust in the unpartisan legal opinion of the Solicitor General.57 Indeed, in the past six terms, the Supreme Court has a 100% correlation of granting certiorari when the Solicitor General recommends that the Court should do so.58 While the correlation is slightly less when the Solicitor General recommends that the Court should deny certiorari, the rate is still high enough to suggest more than simple coincidence.59