By Mark Sherman
Associated Press
WASHINGTON (AP) — From gay marriage to the health care overhaul, the Obama administration’s top 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.
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