U.S. Solicitor General Snubbed Again by Supreme Court

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.”

Divided Time

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.

Vladeck, though, suggested it may have to do with the federal interest—or lack of federal interest—at issue in the cases.

In the jurisdiction case—testing limits on when corporations can be hauled into state courts—the government argued that “restrictions on the personal jurisdiction of state courts often also apply to federal district courts.”

That didn’t persuade the justices to grant the government argument time, which is typically limited to 30 minutes per side.

Same, too, for the latest snub—regarding courts’ ability to award appellate costs—where the government argued that the “United States is a frequent litigant in federal court and may have certain costs taxed both for and against it in litigation.”

The government, though, took the position in its brief that the it isn’t subject to the kinds of awards at issue in the case, bond-premium costs, Goldenberg said.

And while the government still probably has an interest in the case given its implications for other categories of costs, she said, “those other costs are often pretty small potatoes.”

The argument that essentially the federal government is a frequent litigant in court does little to distinguish it from countless other entities, Wang and Covert told Bloomberg Law.

“It’s unclear how hearing from the Solicitor General would improve the Court’s decision-making” in those cases, they said.

The denial over appellate costs came at the same time that the justices granted the government’s request to argue in an upcoming case challenging California’s rule requiring charities to disclose their biggest donors. The argument involves a pair of cases consolidated for argument but the justices refused to divide the argument time among both petitioners—meaning that they’ll have to agree on just one lawyer to present both cases.

Evolving Relationship

The government hasn’t always gotten leeway to argue in cases in which it is interested.

In the 1980s, the court denied the government’s requests to argue as an amicus around 15% of the time, according to the law review article.

In the decades since, that’s shifted to the court agreeing to nearly every request.

That can lead to an outsized role for the government, which is already the most frequent litigant before the justices.

Lastterm the Office of the Solicitor General eked out a winning record in cases in which it was a party, prevailing in 12 of 22 cases, according to Bloomberg Law research.

But its record as an amicus was far better, with its side winning 22 of the 28 cases in which it weighed in.