The Location of U.S. Solicitors General in the Supreme Court’s Policy Space

• In Event: Executive Branch Politics in the U.S. Federal Judiciary

Abstract

The United States is represented at the Supreme Court by the Office of the Solicitor General (SG) and a good deal of work demonstrates the importance of this unique legal actor (e.g., Bailey, Kamoie, and Maltzman 2005; Black and Owen 2012; Caplan 1987; Wohlfarth 2009). Despite the prevalence of spatial logic in models of SG involvement at the Court, there does not exist a compelling measure of the expressed ideological location of this actor. Spatial models typically posit that the SG is located exactly at the same ideal point as the president, based on the assumption that the SG is a perfect agent of the president (Bailey, Kamoie, and Maltzman 2005; Black and Owen 2012). Caplan (1987) and Pacelle (2006) caution against this assumption, however, and note that the SG does not necessarily pursue the president’s agenda.

We use the positions articulated in the amicus curiae briefs filed by the SGs in the 1953 through 2013 Supreme Court Terms to estimate the ideal points of these SGs in the Supreme Court’s legal policy space. Importantly, we treat these amicus brief-based “votes” on cases as analogous to the votes cast by the justices in these cases, allowing us to properly estimate the locations of the SGs and the justices in the same legal policy space. We utilize an item response model that treats the ideal points of the justices and SGs as a latent, unobservable trait to be estimated via Bayesian Markov chain Monte Carlo methods (see Kim and Bolt 2007). Furthermore, the IRT model we employ allows to treat “abstentions” (cases in which the SG does not file an amicus brief) as being due to indifference (as a function of spatial and non-spatial reasons) instead of being random.

A measure of the SG’s location in legal policy space should improve the testing of current spatial models of SG involvement and impact. Moreover, by allowing the location of the SG to be decoupled from the location of the president it will be possible to examine the conditions under which the SG is a better or worse agent of the president, a topic that has yet to be examined systematically. It would also allow researchers to assess whether the SG has become a more politically polarized actor over the modern era (see Wohlfarth 2009). That is, do recent SGs occupy more extreme positions in legal policy space than the SGs of the 1950s, 60s, and 70s?

Authors

• Thomas G. Hansford, University of California, Merced

• Sarah Depaoli, UC Merced

• Kayla S. Canelo, Graduate Student, University of California, Merced