WASHINGTON — From gay marriage to the health care overhaul, the Obama administration’s top U.S. Supreme Court lawyer has won more often than not in some of the biggest cases in recent years. So why is the court ignoring his advice — after asking for it — at a higher rate than usual when it comes to deciding which cases to take up in the first place?
There is no simple answer, mainly because the justices themselves have offered no explanation.
But first, a brief primer on how the place operates.
The solicitor general represents the U.S. government in the Supreme Court and sometimes is referred to as the 10th justice, occupying a special place among all the advocates who appear before the court.
In anywhere from 18 to two dozen cases a year in which the government is not otherwise involved, the court asks for the solicitor general’s take on whether the appeal should be among the precious few granted argument time and a full-blown decision.
An earlier study of seven court terms that included the Clinton and Bush administrations found that the court followed the solicitor general’s advice roughly 80 percent of the time.
In the six full-court terms with appointees of President Barack Obama in office, that number has dropped to 70 percent. In the last term alone, the justices disregarded the advice they had sought in more than a third of the cases. And in the only two briefs filed for the term that began in October, the court has granted review despite a recommendation from Solicitor General Donald Verrilli Jr. to the contrary.
Verrilli did not respond to requests for comment.
But in almost all the relevant cases, the court ended up agreeing to hear appeals that Verrilli’s office counseled the court to reject.
Roy Englert, a Supreme Court lawyer in Washington, said the solicitor general appears too willing to urge the court to stay away from cases. “I think the court thinks the SG has become institutionally conservative,” Englert said. “It’s not a lack of respect for the SG.” Indeed, the court agreed in every case but one when the administration recommended hearing an appeal.
Deanne Maynard, a former assistant solicitor general and Supreme Court clerk, said the numbers also partially conceal instances in which the solicitor general recommended against hearing a particular case even though it thought the lower courts arrived at the wrong answer. In such instances, the case might have a technical legal problem that makes it not a “good vehicle” in Supreme Court parlance.
“Sometimes that case gets to full briefing and oral argument and then the justices decide it’s not a good vehicle,” Maynard said.
Retired Justice John Paul Stevens used to say that one reason he stayed on the court for 35 years was because the workload had declined markedly. A court that decided more than 150 cases 30 years ago resolved fewer than 80 a year in recent terms.
Over that same period, Chief Justice John Roberts joined the court with a pledge to seek more unanimity in opinions, sometimes by ruling narrowly to get everyone on board.
That combination of a light caseload and narrow opinions is not good for the court or the country, say the authors of a study to be published in a University of Minnesota law journal.
“What the court shouldn’t do is decide only a few cases yet still be narrow and guarded in many of its opinions,” said Randy Kozel, a University of Notre Dame law professor and former law clerk to Justice Anthony Kennedy. “At that point, serious questions arise about whether the court is doing enough to fill its crucial role in the legal system and in American government more broadly.”
Kozel acknowledged in an interview that the court does not seem set on limiting itself to taking baby steps, despite Justice Roberts’ call for greater unanimity. Recent terms have included plenty of contentious 5-4 outcomes in favor of gay marriage, dramatic loosening of campaign finance rules and striking down a key part of the landmark voting rights law.
The authors’ main point in their article for the journal “Constitutional Commentary” is that hearing fewer cases is not a problem if the court rules broadly enough to give society the guidance it needs. The justices generally agree that setting clear national standards is their job.
Speaking of coming together, Justice Clarence Thomas reportedly told a Utah audience this week that he’s a “consensus builder” on the Supreme Court. Then he laughed. Justice Thomas probably is the least likely of the nine justices to go along to get along.
Thomas spoke in front of 900 people at a Brigham Young University law school dinner in Salt Lake City, but reporters were forbidden from attending. A court spokeswoman said Justice Thomas was just bowing to the wishes of his hosts, who confirmed the press was not welcome.
Fortunately, nothing is beyond the reach of social media and BYU alumna Michelle Mumford tweeted out some of the highlights of Justice Thomas’ talk, including the bit about consensus.
Justice Thomas also told the crowd that he expects religious liberty issues to be front and center at the court, according to Mumford. The justices could decide next month whether to hear an appeal by faith-based hospitals, colleges and charities who object to the Obama administration’s rules for allowing them to opt out of paying for contraceptives, while ensuring that women covered by the groups’ health plans still can obtain the products at no cost.
Mumford said by telephone that she enjoyed Justice Thomas’ talk and hoped she wouldn’t get in trouble for her tweeting. She wasn’t the only one chronicling the justice’s trip. A Delta Air Lines employee posted to Instagram a midflight picture he took with Justice Thomas on his flight back to Washington the next day.