“Tenth Justice” or “Third Defender”? : Review of the Attorney General’s frequent participation in oral debates

“Tenth Justice” or “Third Defender”? : Review of the Attorney General’s frequent participation in oral debates


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The four most recently represented and confirmed lawyers. Clockwise from top left: Elizabeth Preloga, Jeffrey Wall, Noel Francisco, Ian Gerschengen. (Sketches by Art Lien)

Does the Attorney General’s Office have too much influence on the Supreme Court? in”The loudest voice of the Supreme Court: Deputy Attorney General’s Dominance in the Oral Arguments of Friends of the Court“In a recent article in the Vanderbilt Law Review, Darcy Coffert and Anne Wang studied an overlooked corner of this issue-in cases where the US government is not a party, the Attorney General often participates in oral arguments. Although anyone who submits the amicus curiae summary is eligible to participate in oral arguments, the court “almost exclusively confers this privilege on SG.” As a matter of experience, Covert and Wang can easily prove that SG dominates oral arguments. The difficult question is whether this dominance is reasonable.

Covert and Wang start with the data. Between the 2010-11 and 2019-20 terms, the Supreme Court approved 306 of the 307 requests made by the SG to participate in oral arguments as an amicus curiae. (More about the circumstances behind the rejection below). In contrast, most of the other groups that submitted the amicus curiae briefing knew not to interrupt the inquiry. During the same period, only 43 of the thousands of people who submitted abstracts requested time for oral arguments. Only 15 of these requests were approved.

This is not always the case. In the 1980s, the court rejected SG’s oral arguments in 17% of cases. Beginning in the 1990s, the number of cases heard by the courts during each term of office has decreased significantly, resulting in a decrease in the chances of SG participation as a party. Perhaps in response, the SG office increased the request to participate as an amicus curiae, and the court almost never refused to encourage this practice.According to Covert and Wang, in the past 20 years, SG has participated in 69% to 88% of the oral arguments in the courts, and more than half of the time has been as amicus curiae rather than as a party.

Is this a problem? Covert and Wang think so too. They argued that SG’s routine involvement as an amicus curiae undermines due process and distorts the confrontation system because it gives non-parties with obvious institutional and political prejudices a “bigger voice” than others. They further speculated that doing so would make litigants with different ideologies and party pre-commitments to play a special role, thereby undermining the legitimacy of the court.

Lincoln Kaplan, his 1985 book, Tenth Justice, Provided that the groundbreaking account of the Deputy Attorney General’s Office agrees.in a Reply In Covert and Wang’s article, Caplan cited a large number of scholars who have studied data to show that SG “uses[s] Have a significant impact on the court and enjoy[s] An inherent advantage. “He concluded that SG has “improved[ed] The voice and influence of the administrative department…reached an unprecedented and unreasonable level,” putting the “interests of the administrative department ahead of all other organizations and individuals in the court hearing cases.” (I am one of the scholars who joined this choir. In an article in 2012, “Congress in court“I criticized the great influence of the SG office, and believe that Congress as an institution should be more actively involved in the Supreme Court cases in order to achieve a balance.)

Covert, Wang, and Caplan all agreed that the court should limit the participation of SG’s amicus curiae in oral arguments to cases with clearly defined federal interests. It seems that the court may be listening. April 2020, one month after New York Times reporter Adam Liptak Wrote data about Covert and Wang, The Supreme Court rejected the request of the SG office to participate in oral arguments as an amicus curiae in support of Ford Motor Company. Ford v. Court of the Eighth Judicial District of Montana, A case concerning personal jurisdiction. This is the first time in nearly ten years that the court has rejected the SG’s request for time for debate. Then, in April 2021 (the order was too close to be reflected in Covert and Wang’s data), the court rejected another such request.This time, SG seeks to argue for time to support San Antonio and other cities City of San Antonio v Hotels.com, A case about whether the lower court can award the appeal fee to the party who won the appeal.

The SG office may regret not having the opportunity to debate in these cases—in each case, the federal government-backed party ultimately lost.

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