New Scholarship: “The Loudest Voice at the Supreme Court”

Darcy Covert & A.J. Wang have posted “The Loudest Voice at the Supreme Court: The Solicitor General’s Dominance of Amicus Oral Argument” on SSRN. The NYTs profiled the article here.

Here is the abstract:

Over the last century, amicus participation in oral argument at the Supreme Court has become common, but only for one litigant: the Office of the Solicitor General of the United States (“OSG”). Between the 2010 and 2017 Terms, the Court granted only 8 of 26 motions for amicus oral argument by litigants other than OSG. During that time, it granted 252—all but 1—of such motions by OSG. Since the early 2000s, OSG has often argued more frequently in a Term as an amicus than as a party.

This Article presents the first history of amicus oral argument and how OSG came to dominate this practice. Drawing on an original database of every motion for amicus oral argument filed from 1889 through 2017, we offer the first quantitative history of the practice of amicus oral argument before the Court. We supplement this with a qualitative account of the historical and modern use of amicus oral argument based on archival research and interviews with frequent Supreme Court litigators, including current and former members of OSG. We find that the Court grants OSG virtually unlimited access to amicus oral argument without regard to the strength of the federal interest or the political nature of a given case.

The Court’s special solicitude towards OSG has profound consequences. The Solicitor General already occupies a special role at the Court as the “Tenth Justice.” We argue that OSG’s seemingly unlimited ability to appear before the Court systematically biases the perspectives heard at the Court and therefore undermines due process principles and the adversarial process. We conclude with a proposal for reform.

Adoptive Couple v. Baby Girl/Cherokee Nation Oral Argument Time Splits

From today’s SCT order:

Upon consideration of the motions for leave participate in oral argument as amicus curiae and the motions for divided argument, the time is to be divided as follows: 20 minutes for petitioners, 10 minutes for respondent Guardian ad Litem, 20 minutes for respondent Birth Father, and 10 minutes for the Solicitor General.

Presumably that means:

20 minutes for petitioners — Lisa Blatt

10 minutes for respondent Guardian ad Litem — Paul Clement

20 minutes for respondent Birth Father — Charles Rothfield

10 minutes for the Solicitor General.

Another monster Indian law argument before the Supremes.


Acting SG Neal Katyal Stepping Down

Here is the news from BLT.

In a relatively short period of time, his presence in the OSG had a big effect on tribal interests. His Indian law legacy in the SG’s office remains to be seen, given how so many cases remain pending, but hopefully he’ll be handling a few more Indian law cases in the future.

Supreme Court Oral Advocates in Indian Law Cases

In light of supposition about the relative experience of the oral advocates that the United States utilizes in Indian law cases (more experienced advocates in opposition to tribal interests, less experienced advocates in support of tribal interests), we present Peter Vicaire’s preliminary research on the advocates that have appeared before the Supreme Court in recent decades: SCT Advocates

As with many things, there is some support for this proposition, but nothing conclusive. Here is a list since 2001.

OSG Advocates in Support of Tribal Interests (with number of SCT oral arguments prior to the argument):

Carcieri v. Salazar (2009) — Deanne Maynard (8 prior arguments)

Plains Commerce Bank (2008) — Curtis Gannon (zero prior arguments)

Wagnon (2005) — Edwin Kneedler (100+ arguments)

Sherrill (2005) — Malcomb Stewart (33 prior arguments)

Lara (2004) — Kneedler (100+)

Klamath Water Users (2001) — Malcomb Stewart (21 prior arguments)

Nevada v. Hicks (2001) — Barbard McDowell (8 prior, including 3 Indian law arguments)

Idaho v. US (2001) — David Fredericks (12 prior arguments, later argued for Long Family in PCB)

Atkinson Trading (2001) — Beth Brinkman (17 prior arguments, including 2 Indian law cases)

OSG Advocates in Opposition to Tribal Interests:

Navajo Nation II (2009) — Kneedler

Cherokee Nation v. Leavitt (2005) — Sri Srinivasan (zero)

Inyo County (2003) (opposed tribal position on Section 1983) — Barbara McDowell (14, plus 4 prior Indian law arguments)

Navajo Nation I (2003) — Kneedler

White Mountain Apache (2003) — Gregory Garre (4 prior, including 1 Indian law argument, later became SG under Bush)

Chicksaw Nation v. US (2001) — Ed DuMont (18 prior, including 1 Indian law argument, later nominated for Fed. Cir. by Obama)

Obama’s Nominee for Solicitor General Has Fairly Extensive Indian Law Experience

Donald Verrilli, President Obama’s nominee for the SG position, has worked several Indian law matters before the Supreme Court while part of Jenner & Block (along with our friend Ian Gershengorn, also at the DOJ), mostly in terms of cert stage briefs and amicus briefs at the merit stage. However, Mr. Verrilli is known more for his work in other appellate cases, especially telecommunications and even some War on Terror cases.

Here are those Indian law briefs, listed by case:

Cayuga Indian Nation v. Pataki (cert denied)

Cayuga Cert Petition

Cayuga Reply Brief

City of Sherrill v. Oneida Indian Nation

USET Amicus Brief in Sherrill

Cherokee Nation v. Thompson

US Chamber of Commerce Amicus Brief in Support of Cherokee Nation

South Dakota v. Cummings (cert denied)

Cert opposition brief

Mr. Verrilli also worked on the cert stage briefs in Comstock Resources v. Kennard, which had some tribal involvement, but little actual Indian law, in opposition to the tribal/Indian interest.

Commentary on Recent CVSGs in Supreme Court Indian Law Cases

A couple years back, we wrote a post about the important of the Solicitor General’s views in Indian law cases (here). I followed that up with a short paper on how it appeared that the OSG’s influence on the Supreme Court — usually very prominent — seemed to wither when the OSG sided with tribal interests in Supreme Court litigation.

In this Term alone, at the invitation of the Supreme Court, the OSG has already filed two invitation briefs (Hogan v. Kaltag and Thunderhorse v. Pierce), and could file two more before the Term ends in the summer (Schwarzeneggar v. Rincon Band and Miccosukee Tribe v. Kraus-Anderson Construction). These invitation briefs are the result of Supreme Court orders inviting the views of the Solicitor General in cases where the U.S. is not a party (called a CVSG — a call for the views of the Solicitor General), but where the federal government may have a special interest or special expertise in a particular issue. The Court has asked for the Solicitor General’s views on an Indian law petition, on average, somewhat less than once per Term.

So the four recent CVSGs are interesting, to say the least.

There are tons of theories as to why the Court might issue a CVSG. For example, a Supreme Court clerk in the cert pool might simply be flummoxed by a question, and recommend a CVSG so as to avoid writing a poor memo; or a Justice or group of Justices might be wary of a grant in a particular case thinking a majority would rule against the Justice’s preference, and so seek a CVSG (a “defensive CVSG,” if you will); or any number of other reasons. It bears note that the OSG has already passed on drafting an amicus brief during the certiorari stage, and so the Court’s issuance of a CVSG is, to some extent, evidence of the Court second-guessing the government’s choice to sit back on a particular case. In Indian law cases, it makes sense to issue the occasional CVSG — the federal government is the trustee of Indian tribes and Indian property, the government has experience and expertise in Indian affairs and litigation involving tribal interests, and Indian law is a uniquely federal question.

So why so many CVSGs this Term (three, and one carried over from last Term)? It could be with the recent turnover in the Court, the new Justices really do need the additional advice from a respected authority (that is, the OSG). Maybe the OSG is writing fewer amicus briefs during the cert stage than before, and so the Court is trying to fill that gap with CVSGs. Maybe there are few Justices that at least superficially support tribal interests, and they are being successful in persuading the rest of the Conference to defer to the OSG through the CVSG process before issuing a grant against tribal interests (“defensive CVSGs”).

One possibility (a total long-shot, I know) is that the Court is gun-shy about granting a cert petition brought by a state or a non-Indian party (but obviously not the United States) because of the Plains Commerce Bank v. Long Family Land and Cattle Co. debacle. I say debacle because I get the sense that the majority of the Supreme Court was surprised by the way the case played out. Going back and reading Plains Commerce Bank’s cert petition, the petitioner fudged the facts a bit in trying to make the tribal court decision look irresponsible to the Court. Instead of a perfect vehicle (that is, set of facts) that would support a resounding decision rejecting tribal court jurisdiction, the Court was faced with a tribal court that allowed and encouraged non-Indians to participate in the jury pool, a non-Indian bank that had been a significant repeat player in tribal court cases, and especially a non-Indian bank well-known for discriminatory lending practices in Indian country. The cert opposition brief apparently didn’t do a good enough job articulating those concerns and others. Chief Justice Roberts still found four reliable conservative votes for his majority opinion, but at great cost, I think, to the Court’s claim to impartiality in Indian law cases.

[If you don’t think the Court looks for a particular set of facts that are strongly anti-tribal before they’ll hear a case, see the cert pool memos in FMC v. Shoshone-Bannock Tribes, where the Court declined to accept a Montana case brought by a non-Indian company (which they later would in Strate v. A-1 Contractors), and American Management and Amusement v. Barona Group, where the Court declined to accept a challenge to tribal claims based on laches (which they later would in Sherrill v. Oneida Indian Nation).]

Now is a critical time for tribal interests. There may soon be a new Solicitor General, and the Court appears to be relying more on the OSG for Indian law advice (the Court accepted the recommendation to deny the petitions as stated in both invitation briefs filed this Term).

None of this has any import when the OSG files cert petitions against tribal interests in cases where it seems unlikely the government would have chosen to do so before the last few years, but that’s the subject of another posting another time.