The Office of the Solicitor General: Negative Agenda Setting and Certiorari

• In Event: Lawyers and External Actors in the Judicial Process

Abstract

One of the most important legal organizations in the United States is the Office of the Solicitor General (OSG). The OSG represents the federal government’s interests in federal litigation proceedings with the unique power to intervene and offer the government’s position on an issue even when the government is not a party to the case. In many ways, the OSG operates as would any other lawyer, its goal is to achieve the best outcome for its client. Due to its presidentially appointed status, the OSG finds itself tasked with maintaining both the short-term interests of the current presidential administration and the long-term interests of the United States government. Previous scholarship established the close advisory relationship between the Supreme Court and the OSG but this relationship is not infallible and shifts over time. (Caplan 1989; Perry 1991; Saloklar 1992; Black and Owens 2011,13, Black and Schoenherr 2019). My paper further investigates this connection by evaluating the gatekeeping role the OSG plays at the certiorari stage before the Supreme Court—especially their negative agenda setting power. By viewing the OSG as a legal mobilization actor, and one involved in the public policy process more generally, we can understand the OSG and the use of its power in new ways. This paper builds on previous scholarship about the strength of the OSG, but my work takes more seriously the language of the law rather than focusing on win/loss rates. I argue that because of the OSG’s dual mandate, the OSG spends a significant amount of resources on defensive litigation tactics including opposing certiorari petitions or urging the Court to limit the scope of review in order to maintain doctrinal and policy goals of the federal government within discrete areas of public policy. I investigate the extent to which negative agenda setting strategies are successful using a novel longitudinal dataset of OSG briefing materials (1971-2016) coded for policy content, and a text-as-data approach. I compare the textual content of OSG filings at the certiorari stage to the textual content of Supreme Court decisions to systematically identify if the Court followed the OSG’s suggestions. I also show how the OSG changes its defensive strategy across different policy areas.

My study has two main hypotheses. First, I hypothesize that the OSG will assert similar legal arguments in cases implicating the same substantive policy area even under different presidential administrations. Second, I expect that arguments asserted by the OSG will be more successful than arguments asserted by private litigants as measured by the textual similarity of the Supreme Court opinions to the arguments asserted in certiorari briefings. My preliminary results indicate interesting findings. First, the OSG is most influential at convincing the Court to reject appeals, especially when the appeal is against the government. Second, the OSG is exceedingly influential at convincing the Supreme Court to limit the scope of a potential decision. For example, the OSG often requests in its briefings that the Court limit their review to a specific statute rather than a more comprehensive constitutional claim. The Court usually obliges. My project considers an important political phenomenon: a presidentially appointed and managed bureaucratic office exerts significantly more influence over which cases and ultimately which political issues the Supreme Court will hear.

Author

• Christine Bird, The University of Texas at Austin