Solicitor General Pushing Justices to Take More Cases Uninvited

The Trump administration is pressing more assertively in its second term to steer the Supreme Court’s docket toward cases that advance the president’s policy agenda.

US Solicitor General John Sauer’s office has filed at least six unsolicited briefs over the past year at the early stages of a case while justices were considering whether to take it up, according to records tracked by John Elwood, who leads the appellate and Supreme Court practice at Arnold & Porter. That pace is much faster than previous administrations that have filed one or two such briefs during a four-year term.

The push highlights a pattern under Sauer, who has found repeated success when seeking emergency relief from the conservative-dominated court in response to orders blocking Donald Trump’s executive actions.

“This administration clearly thinks it has a sympathetic set of justices, and the justices, at least the more conservative ones, have responded favorably to many of the administration’s asks of them,” said Adam Feldman, a lawyer who runs the Empirical SCOTUS website that analyzes the court. “If the justices are receptive to these types of maneuvers then this is clearly an efficient way of doing business.”

The latest filing came in January, when Sauer asked the justices to hear St. Mary Catholic Parish v. Roy. The petition seeks review of a decision from the US Court of Appeals for the Tenth Circuit upholding a ban on Catholic schools participating in Colorado’s state-funded universal preschool program.

The administration argues the exclusion violates the Constitution’s Free Exercise Clause, and wants the ruling reversed.

Once a rare step at the Justice Department, the intervention is part of a consistent effort to get the justices to take up third-party challenges aligning with Trump’s agenda on issues including gun restrictions and climate change.

Unusual Step

Sauer’s office has seen success with unsolicited briefs. The justices agreed to hear three cases after his office urged them to do so and granted a stay the administration also sought. Two other petitions remain under consideration.

Unsolicited SG briefs in past administrations have generally been limited to cases in which the interests of the US are directly implicated, according to Michael Dreeben, a former deputy solicitor general who served with the office from 1988 to 2019 and is now a lecturer at Georgetown Law.

Dreeben invoked the approach of the late long-time Deputy Solicitor General Larry Wallace “who was known to say, ‘If they want to hear from us, they know how to ask.’”

Sauer acknowledged the atypical nature of the preschool case filing, saying it reflected the administration’s significant interest in the issue.

“The government’s decision to file an uninvited certiorari-stage amicus brief reflects its views about the severity of the court of appeals’ error, the recurrence of the question presented, and the significant benefit that further clarity in this area of the law would provide to the lower courts, federal and state governments, and the public,” Sauer wrote.

In two cases, including St. Mary Parish, Sauer’s office filed early because the court had called for its views in similar cases, according to a source familiar with the solicitor general’s office.

Many of the unsolicited briefs filed over the past year have appeared less motivated by federal interests and more by policy preferences of the administration, according to Sarah Harrington, who co-chairs Covington & Burling’s appellate and Supreme Court litigation group.

Harrington, who served in the SG’s office from 2009-2017, recalled only two such unsolicited cert-stage briefs during her tenure. Both dealt with Bivens cases about liability for federal officers.

During the second Trump administration, the solicitor general’s office has also weighed in unsolicited on a Bivens case–along with cases dealing with how state courts should interpret multiple IQ tests in death penalty cases, a Hawaii gun law and an attempt by Colorado to seek damages from energy companies for greenhouse gas emissions.

Harrington said the office has typically avoided such unsolicited, policy-focused filings both to avoid using up its capital with the court and out of a desire to preserve the high bar for granting cert in the first place.

“The more you weigh in in favor of cert grants, there’s a potential you’re diluting the strong institutional view that cert should not be granted in most cases,” Harrington said.

Harrington also said more lobbying of the court could in turn encourage more litigants to lobby the solicitor general’s office as well seeking such support—potentially adding to the office’s already heavy workload.

The SG’s office—sometimes called the “Tenth Justice” for its role both in representing the government and in influencing which cases the court hears—generally participates in roughly two-thirds of the cases heard each term, either as a party or as an amicus. The court frequently invites the solicitor general’s views on whether it should take up a case.

The six-justice conservative majority may also impact which administrations have been eager to push cases.

The solicitor general’s office filed unsolicited pre-cert or stay stage briefs three times during President Barack Obama’s eight years in office. Two filings involved lawsuits against federal officers and another occurred in a death penalty case. President Joe Biden’s administration acted once.

In other recent Republican administrations, Noel Francisco submitted at least two unsolicited briefs as solicitor general during Trump’s first term. Ted Olson filed five such briefs during President George W. Bush’s first term, and his successor, Paul Clement, submitted two.