Court snubbing SG moves for a more active role now.

The U.S. Supreme Court on Monday denied the federal government’s request to argue in an upcoming case, something the court has done just three times in the past two decades and twice in under a year.

While the sample size is pretty small— the two most recent “token denials” could be “the beginning of a subtle message from the Court for the SG to engage in more self-regulation” when asking for precious argument time, said University of Texas law professor Stephen I. Vladeck.

Vladeck noted that the government’s lawyer at the high court “is seeking to participate in a far larger percentage of cases than was true as recently as 20 years ago.”

At the same time, the court, steeped in habit and tradition, almost never allows other parties to argue as amicus or friend-of-the court—a non-party that weighs in on one side or the other.

The court granted only 14 of 41 motions for amicus oral argument by other litigants between the 2010 and 2019 terms, according to a forthcoming law review article by Yale law graduates A. J. Wang and Darcy Covert.

Over that same period, the justices granted 311 of the Justice Department’s 312 requests, the article says.

Those cases often implicate federal interests, even if the government isn’t an official party.

Earlier this term, the government argued as an amicus in a case asking whether a federal benefits law preempted state requirements. “The Secretary of Labor has primary authority for administering” the federal law at issue, the solicitor general told the justices.

Federal Interest

But in just under a year, the court has now denied two requests from the federal government to argue as an amicus, including a jurisdictional dispute the justices heard earlier in the term.

The court’s one sentence order didn’t explain why the justices rejected the government’s latest request.

Occasional denials could serve “to keep the government from being complacent about its right to participate in argument whenever it wants to,” said former Assistant to the Solicitor General Elaine Goldenberg, who is now a partner at Munger, Tolles.