Article about the Other 10th Justice: The Development of the Supreme Court Practice of Calling for the Views of the Solicitor General

November 19th, 2009

Although I have dubbed my most recent feature Predictions of the 10th Justice, this new article on SSRN discusses the other 10th Justice, commonly known as the Solicitor General (H/T SCOTUSBlog)

The solicitor general “has developed a unique relationship with the Supreme Court, one in which it serves as an adviser as well as an advocate.” The Solicitor General fulfills his role as the Court’s adviser and advocate by responding to the Court’s invitation to express the views of the United States in given petitions for certiorari. Here, the Solicitor General acts as a special type of amicus because the Solicitor General is not a party to the proceeding nor opining on behalf of one of the parties but rather acting as a sort of “partner” to the Justices. When the Justices believe that, before they can grant or deny a petition for certiorari, they would like another opinion of the merits of a petition, they “call for the views of the solicitor general,” known colloquially as CVSG. Because of the enormous amount of trust that the Court holds in the Solicitor General’s office, the Court values the Solicitor General’s opinion to “provid[e] [the] best judgment with respect to the matter at issue.” However, this unique relationship of trust between the Court and the Solicitor General such that the Solicitor General’s opinion is treated as tantamount to the opinion of a tenth justice did not develop until the 1950s. This paper will examine how the CVSG process developed. Part II will provide general background information, explaining the office of the Solicitor General, the Supreme Court practice of granting certiorari and the reasons for doing so, and the process by which the Supreme Court invites the Solicitor General to express the opinion of the United States. Part III will examine the environment that laid the groundwork for the CVSG process to emerge: the personal relationships that existed between individual justices and attorneys in the Office of the Solicitor General and the political climate that instigated a political partnership between the Court and the Solicitor General. Finally, Part IV will argue that the CVSG process represents the culmination of the mutually beneficial relationship between the Court and the Solicitor General and then describe the first petitions for certiorari where the Supreme Court exercised its option to CVSG.

For another interesting article on the role of the SG, see AN EMPIRICAL ANALYSIS OF SUPREME COURT CERTIORARI PETITION PROCEDURES: THE CALL FOR RESPONSE AND THE CALL FOR THE VIEWS OF THE SOLICITOR GENERAL by David C. Thompson and Melanie F. Wachtell. I edited Dave and Melanie’s article will on the George Mason Law Review, and absolutely loved this piece. Definitely check it out.