The Solicitor General and the Shadow Docket - Harvard Law Review

This essay by Stephen Vladeck (U Texas Law) provides the backup for Justice Sonia Sotomayor's recent dissent from the stay of an order blocking a particularly outrageous Trump Rule: barring admission to the US of anyone who might some day seek a public benefit.   Sotomayor accuses the Supreme Court of being a doormat for the Trump administration's  frequent requests to stay adverse orders below - a remedy infrequently granted until now when an aggressive administration meets a very sympathetic court. - gwc

The Solicitor General and the Shadow Docket - Harvard Law Review

by Stephen Vladeck November 2019

The Solicitor General’s special relationship to the Court is not one of privilege, but of duty — to respect and honor the principle of stare decisis, to exercise restraint in invoking the Court’s jurisdiction, and to be absolutely scrupulous in every representation made.

— Seth P. Waxman, Solicitor General of the U.S. (1997–2001)^1×

For almost as long as there has been a Solicitor General of the United States (150 years next June^2× ), there has been debate over the unique functions and obligations of the office.^3× It’s not just that the Solicitor General is one of the only federal officers who, by statute, must be “learned in the law.”^4× Besides the Vice President, the Solicitor General is the only federal officer with formal offices in multiple branches of the federal government — in both the main building of the Department of Justice and the Supreme Court.^5× And the Solicitor General does not just have a physical presence at the Supreme Court; the Court’s rules and traditions both formally and informally privilege the Solicitor General as the de facto head of the Court’s bar — and show special solicitude to the Solicitor General across a constellation of considerations.^6×

With these special privileges come special responsibilities. As Simon Sobeloff (Solicitor General from 1954 to 1956) put it, “[t]he Solicitor General is not a neutral, he is an advocate; but an advocate for a client whose business is not merely to prevail in the instant case. My client’s chief business is not to achieve victory, but to establish justice.”^7× The oft-repeated moniker that the Solicitor General is the “tenth Justice”^8× may well reflect the perception that the forty-eight holders of that office have generally lived up to that responsibility — or, at least, that the Court has acted as if they have.

Recently, that perception has come under unusually significant fire. Solicitor General Noel Francisco was accused of repeatedly misleading the Justices during and after oral argument in the travel ban case.^9× He was also heavily criticized for how he litigated a controversial dispute over access to abortions by minors in immigration detention.^10× Scholars from across the political spectrum have accused the government of “astounding” conduct in changing its litigating position in a dizzying array of high-profile cases (changes that the Solicitor General would, by tradition, have been involved in approving).^11× And critics have argued that the Office of the Solicitor General (OSG) under Solicitor General Francisco’s watch has filed an unprecedented number of requests for emergency or extraordinary relief from the Justices, asking the Court (1) to hear certain appeals before the lower courts have finished ruling; (2) to halt the effect of lower court rulings pending the Supreme Court’s review; or (3) to jump over the courts of appeals and directly issue writs of mandamus to rein in perceived abuses by different district courts.^12×

There is a veritable mountain of scholarship and popular commentary on the Solicitor General’s role and relationship with the Supreme Court.^13× But virtually none of it has addressed this last phenomenon, even as more attention is being paid to the Court’s “shadow docket,” that is, the significant volume of orders and summary decisions that the Court issues without full briefing and oral argument.^14× This Essay aims to fill that gap.

Part I briefly introduces the statutes, rules, and case law governing the three most common forms of emergency and extraordinary relief in the Supreme Court. Part II then summarizes the instances (through the end of September 2019) in which the Solicitor General has sought such relief since the beginning of the Trump Administration — and contrasts them with such requests from the Solicitors General who served during the eight-year tenures of Presidents George W. Bush and Barack Obama. As Part II explains, the data are conclusive: Solicitor General Francisco has indeed been far more aggressive in seeking to short-circuit the ordinary course of appellate litigation — on multiple occasions across a range of cases — than any of his immediate predecessors. To take one especially eye-opening statistic, in less than three years, the Solicitor General has filed at least twenty-one applications for stays in the Supreme Court (including ten during the October 2018 Term alone).^15× During the sixteen years of the George W. Bush and Obama Administrations, the Solicitor General filed a total of eight such applications — averaging one every other Term.^16×