Solicitor General Seeks Staff as Justices Request More Responses

The US Supreme Court has been increasingly asking for the federal government to respond to requests for review in criminal cases, suggesting at least one justice is taking a closer look at these appeals.

The court “has become more likely to call for a response if OSG initially waives its right to respond,” the Justice Department said in its 2024 budget justification, using shorthand for Office of the Solicitor General. The OSG litigates all high court cases involving the US and federal agencies.

As a result of the increasing requests, the office filed responses in 25% of criminal appeals seeking Supreme Court review in the fiscal year that ended Sept. 30, 2022, up from 8.1% in 2014, according the budget document.

Michael Dreeben, a partner at O’Melveny & Myers who for decades served as the deputy solicitor general in charge of the federal government’s criminal cases, said he was surprised by the statistic. “That’s a very high response rate to criminal petitions,” he said.

Increasing Workload

OSG cited the increase in requests from the justices—known as call for a response, or CFR—in asking to add two attorneys to its workforce of 23.

The “general trend, and the resulting increase in OSG’s workload, can be expected to continue,” the Justice Department justification said.

The document, though, doesn’t suggest a reason behind the increase in CFRs.

Dreeben speculated that “new justices may be more inclined to CFR, while the experienced ones have seen it all already.” The court has added four new members since 2017—Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, and Ketanji Brown Jackson.

Arnold & Porter’s John Elwood said he wondered if the court’s newest member, Jackson, might be behind some of the increased interest in criminal cases. Notably, it only takes one justice to call for a response. She may be joining Justice Sonia Sotomayor in taking a closer look at those cases, said Elwood, who is an alumnus of OSG.

Jackson and Sotomayor, both former federal trial and appellate judges, have teamed up in several criminal cases this term, dissenting from the court’s decision not to hear them.

And Morgan Ratner, who is now at Sullivan & Cromwell following a stint at OSG, said it could be that the quality of petitions seeking certiorari, or review, has increased.

There “is now a more developed private Supreme Court bar scouring the field for potentially meritorious cert petitions,” she said.

But Dreeben warned against speculating too much into the reasons behind the increase in CFRs. No “one outside of DOJ and the Court is likely to know the true answers.”