Perm kills prior consultation which decks credibility.

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:

By their nature, such invitations are extended in cases that present difficult questions of law in litigation to which the United States is not a party and, most often, has not participated prior to the time the invitation is extended. Because the government generally does not have a previously formulated position on the question presented, doing so regularly involves considerable consultation with those both inside and outside the government. Representatives of this office routinely arrange meetings with counsel for the parties to the case before the Court, including in some instances follow-up meetings, in order to better understand the legal issues, litigation history, and record. We also engage in extensive consultation with interested departments and agencies within the government to ensure that we fully understand the implications of the questions presented on the broad array of government programs and interests.240