The federal government’s top lawyers at the U.S. Supreme Court posted a better record than last term in cases in which it was a party—but it still barely passed the 50-50 mark.
It’s part of a decades-long slide, which may be explained by the emergence of a group of Supreme Court specialists to counter the government’s legal team.
Last term, the office of President Donald Trump’s Solicitor General Noel Francisco lost 12 cases and won just 11 such cases. This term the SG’s office had 12 victories and 10 defeats.
That’s in stark contrast to its 22 and 6 record when participating as a friend-of-the-court, where the government takes a position in a dispute despite not being a party.
The administration’s success in those cases is partly due to the fact that the solicitor general “can exercise discretion over which cases to support, and may choose cases with a good chance of victory,” University of Chicago law professor Eric Posner said. “By contrast, when the administration appears before the Supreme Court, normally the SG has a duty to represent it,” he added.
The administration’s mixed showing in cases where it’s a party comes as the ideological makeup of the executive branch aligns more closely with the fortified conservative court. That convergence has led the justices to frequently follow the Solicitor General’s recommendation when it comes to which cases to hear, courtwatchers say.
But it hasn’t translated to more wins for the administration in cases where it’s a party.
To be sure, the SG’s high court record is significantly better than most litigants, said Jeffrey T. Green of Sidley Austin in Washington. In addition to representing parties before the Supreme Court, Green also co-chairs the National Association of Criminal Defense Lawyers Amicus Committee, a frequent friend-of-the-court filer in criminal cases.
The Office of the Solicitor General had historically enjoyed a high level of success at the Supreme Court in cases in which it’s a party. That success peaked during the Reagan administration at over 70%, according to a 2018 law review article by law professors Lee Epstein and Posner.
That number has consistently declined in the ensuing years, with the Obama administration faring the worst in modern history, the article said.
“The SG’s record in front of the Supreme Court this year when the U.S. was a party is close to its overall record during the Obama administration"—a bit over half, Posner said July 8.
The Office of the Solicitor General did not return a request for comment.
Several factors could be behind the steady decline in the executive’s high court success.
One likely explanation is the creation of a specialized Supreme Court bar.
Since President Franklin D. Roosevelt, the federal government has been represented at the high court by a specialized team of appellate lawyers that focus on the Supreme Court: the Office of the Solicitor General.
But it wasn’t until the mid-1980s that a similar group emerged to represent parties opposing the federal government, Green said.
The lawyers “opposing the president are now so skilled that they have offset the president’s usual advantages,” the 2018 article said.
This term just five private Washington attorneys argued in a quarter of the Supreme Court’s cases—Kellogg Hansen’s David Frederick argued five, while Kirkland & Ellis’s Paul Clement, Paul Weiss’s Kannon Shanmugam, and boutique lawyer Daniel Geyser of Geyser P.C. each had four.
That experience means the parties are better lawyered on both sides of the “v.,” Green said. And it’s led to more losses for the executive branch.
One of the administration’s most high-profile losses this term came in the litigation over adding a citizenship question on the 2020 census.
A handful of the administration’s other losses this term came in criminal cases.
The court has generally been skeptical of the government in criminal cases, said former Assistant to the Solicitor General Nicole Saharsky, now at Mayer Brown in Washington.
Trump’s first Supreme Court nominee, Neil Gorsuch, joined his more liberal colleagues in supplying the decisive fifth vote in two criminal cases that went against the federal government—in the sentencing case United States v. Davis and the probation revocation case United States v. Haymond.
Gorsuch, though, isn’t alone in his skepticism of the federal government.
Of the current justices—not including Gorsuch and Brett Kavanaugh, for which there isn’t sufficient information—only Justices Clarence Thomas, Stephen G. Breyer, and Samuel Alito mostly vote in favor of the government according to Empirical SCOTUS’s Adam Feldman. Breyer just barely meets the threshold— he votes for the government 54% of the time.
The administration, though, nabbed some significant victories this term, too.
Both Saharsky and Green pointed to Gundy v. United States as a significant win—possibly the most consequential one.
There, the administration fended off a “non-delegation” challenge to the attorney general’s decision to retroactively apply registration requirements on sex offenders.
The challengers argued that Congress had delegated too much authority to the executive branch, without providing sufficient guidance on how to wield that power.
Had the administration been unsuccessful at beating back that challenge, it could have had major ramifications for Congressional delegation going forward, Green said. It likely would have led to the undoing of several statutory schemes and curtailed executive power in general.
The administration also fought off a challenge to its ability to charge criminal defendants for crimes already tried by state authorities.
The court’s 7-2 decision in Gamble v. United States not only refused to overturn the longstanding “separate sovereigns” doctrine, but reaffirmed that it was correctly decided under the court’s double jeopardy jurisprudence.
In particular, the ruling will bolster federal civil rights and hate crimes prosecutions going forward.
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