“CVSG”s in plain English

By Lisa Tucker
on Feb 10, 2010 at 10:15 am

Last Wednesday, we posted a list of the CVSG cases for the Term here.  For those of you not engaged in minute-by-minute SCOTUS watching, though, this might be one of many acronyms that makes you want to hang up your morning suit (yes, that reference means something in this discussion) and leave the building.

But CVSG cases may well be some of the most interesting cases of the Term!  Why?  Because these cases are sufficiently important that the Court has decided to Call for the Views of the Solicitor General.

First, let’s start with the Solicitor General (or, to those in the know, the “SG”).  No, as Greg Garre – who preceded the current SG – is wont to say, this is not the person whose name appears above the warning on cigarette packs:  that is the Surgeon General.  The Solicitor General is also appointed by the President, but he or she went to law school, not medical school.  The SG represents the interests of the United States, or the federal government, before the Supreme Court.  The current Solicitor General is Elena Kagan; she is the first woman to hold the post.

When the United States is a party to a case, the Solicitor General is responsible for deciding whether to appeal to the Supreme Court.  (The SG also makes similar decisions for appeals in lower courts.)  These might include cases involving federal prisoners (like United States v. Comstock this Term), unfair treatment by a federal agency, or other types of issues in which the federal government is directly involved.  If the SG does decide to petition for cert., then obviously the SG will be involved at every stage of the Supreme Court litigation, including the filing of the cert. petition, the filing of a merits brief, and the oral argument.

However, there are also many instances in which the federal government is not a party but the Court will be interested in knowing the SG’s opinion on the case anyway.  These cases are most likely to arise when a lower court’s interpretation of a federal law or regulation has been called into question and the Supreme Court must decide whether to step in.  In that scenario, the Court may ask the SG to file an amicus curiae brief expressing the views of the United States; the brief that the SG files will then usually recommend whether cert. should be granted or denied and – if cert. is granted – who should win the case and why.  That is a CVSG, and it is one reason why the Solicitor General is often called the “Tenth Justice,” because the Court almost never asks for anyone else’s opinion. (Exception:  The Court has occasionally, albeit very rarely, asked state attorneys general to file similar briefs.  And this Term the Court called for the views of the Solicitor General of Texas, who represents the State of Texas before the Court.).

Why does the Court ask the SG to weigh in?  Well, the SG works with all three branches of the federal government.  The SG’s office can actually talk to the federal agencies involved, or Congress, or those who will be affected by the Court’s ruling, and relay important information to the Court.  This information might include what the agency or legislature intended when it passed the regulation or law, how government interests would be affected by a particular ruling, and so on.  In other words, because the Solicitor General represents the interests of the United States before the Court, the Court is likely to want the SG’s opinion in cases where questions of federal law arise, even if the United States is not a party to the litigation.

One example is Chase Bank USA v. McCoy, a pending case in which the question presented is “When a creditor increases the periodic rate on a credit card account in response to a cardholder default, pursuant to a default rate term that was disclosed in the contract governing the account, does Regulation Z, 12 C.F.R. § 226.9(c), require the creditor to provide the cardholder with a change-in-terms notice even though the contractual terms governing the account have not changed?” Who better to know than the federal government, one branch of which enacted the federal regulation?  Same thing with Morrison v. National Australian Bank, in which the issue is:  “Whether the judicially implied private right of action under Section 10(b) of the Securities and Exchange Act of 1934 should, in the absence of any expression of congressional intent, be extended to permit fraud-on-the-market claims by a class of foreign investors who purchased, on a foreign securities exchange, foreign stock issued by a foreign company.”  That case involves the interpretation of a federal statute.  And in Triple S. Management Corp. v. Municipal Review Collection Center (issue: “Is the executive branch, unlike the legislative branch, free of all due process constraints on retroactive government action, as long as it asserts that its earlier interpretation of law was ‘wrong’?”), the question is a federal constitutional one involving due process; it will, however, affect the executive branch’s ability to change its mind about how it interprets laws.

A couple of other things to know:  First, although the Court merely “invites” the SG to file a brief, the SG treats it as a command.  And, as SCOTUSblog’s Amy Howe has explained, there are no deadlines for the SG to file. Traditionally, however, the SG’s office has filed most invitation briefs at three times of the year:  late May, so that the cases can be considered before the summer recess; around August, so that the cases can go on the summer list; and December, so that the cases can be considered in time to be argued that Term if the Court grants cert.

Second, if the Court CVSGs a case, it listens closely to the view of the SG in response to its invitation.  Many scholars have noted that when the SG makes a recommendation to the Court, the Court is more likely than not to follow that recommendation, sometimes substantially so.

Third, how about that morning coat reference in the first paragraph?  Well, that refers to the fact that male attorneys in the Solicitor General’s office wear morning coats when arguing before the Court.  Most of the women in the office also don some approximation of this formal dress (which was once required by all attorneys appearing before the Court), although the Solicitor General herself has opted to wear a regular black pantsuit.

Sometime soon, I’ll post more information in Plain English about the Solicitor General and what she does.  Until then, enjoy the fascinating conversation here about Black History Month!