Grading the Solicitor General: A different way of keeping score (UPDATED)

Alan B. Morrison is the Lerner Family Associate Dean for Public Interest & Public Service Law at the  George Washington University Law School.  The excellent research and other assistance of Gregory Kubarych, GW Law School class of 2014, are gratefully acknowledged.

Last spring, one of Washington’s favorite indoor sports was rating the performance of Solicitor General Donald B. Verrilli, Jr., with a special emphasis on his performance in two very high-profile cases: the challenges to the Affordable Care Act (ACA) and the federal government’s suit seeking to invalidate Arizona’s very strict laws regarding immigrants.  In most athletic contests (except soccer or hockey, in which ties are not infrequent), you can look at the scoreboard at the end and get a clear answer as to who won the game.  And you can add up the wins to see who won the league title.  In litigation in the Supreme Court, scoring is not that simple for a variety of reasons. Although winning any given case is still important, as it was to the Obama Administration in both of those cases, it is not the whole story, especially for a frequent litigant like the United States.

There are two confounding factors that prevent an honest scorekeeper from getting a clearly correct batting average.  First, in the two major cases, there were multiple issues, and the Court did not go the same way on all of them — and not all were of equal significance.  In the ACA case, the Court agreed with the United Statesthat the Anti-Injunction Act did not preclude it from reaching the merits of the challenge to the individual mandate, but does that count as a “win,” or did it instead just allow the government to avoid having to come back another day? On the mandate itself, it lost its Commerce Clause justification, but the Court sustained the entire provision on the ground – also advanced by the government, although in less detail – that it was a constitutional tax.  Does that count as a win (because the law was ultimately upheld), or a tie (because the Court rejected the government’s primary argument for sustaining it)?  On Medicaid, the government clearly lost on the merits of the coercion claim (by a vote of seven to two), but a majority upheld a major extension of the law, although without the potential penalty that Congress included.  Was that a win or a tie, or does the answer depend on how many states (or what percentage of Medicaid patients) the new law will cover (and measured at what time)? Finally, the 5-4 severability decision was perhaps the most important (and most statute specific) in the entire case, yet had it gone the way that the dissenters wanted, the whole law would have been overturned.  Because the effort to strike down the entire ACA failed, that is probably why, for most Americans, the Obama Administration was seen to be the clear winner. But for scholars and Supreme Court practitioners, that conclusion is not so obvious.

In an effort to create some kind of scorecard, we made several choices: we excluded what seem to be minor issues, and in some cases combined two related arguments into one issue when the result would be the same either way, and the legal bases for the SG’s positions were close if not identical.   As it turns out, only the ACA and Arizona immigration cases had what we considered to be multiple issues (5 and 4, respectively), and the government was regarded as having “won”  both cases; on an issue basis, the score was 3-2 and 3-1, respectively.  While we recognized that some wins are much more important than others, we ultimately concluded that attempting to apply an importance standard would be too subjective for a scoring system like this and thus treated all wins or losses equally.

We also decided to score not only the 24 cases in which the United States(or an officer or agency) was a party (totaling 31 issues), but also the 24 (all one-issue) cases in which it filed an amicus brief.  To get our scores, we added the issues on which the United States prevailed in both categories to produce an overall record of 29 wins and 26 losses on the 55 issues scored.  Interestingly, as a party it was 14-17 on the issues, but was 15-9 as an amicus.  We note – for what it is worth – that among the 29 wins, 16 issues were decided with two or fewer Justices dissenting, which may suggest that the outcome did not depend on the skills of the SG’s office; the comparable number for the 26 losses was 15.  Other methods and other refinements would have produced somewhat different scores, but we had to draw some lines somewhere.  And if we do this again, we will have made our choices and have to live with them.

Second, the Solicitor General is seen by many as defending the position of the current administration, which is surely the case in the ACA litigation that arose from a law that President Obama championed.  The same is true for the Arizona immigration case; the statutes on which the Justice Department relied to argue that the Arizona laws imposing additional penalties on illegal immigrants were preempted pre-dated the Obama administration by many years.  However, it was the current DOJ’s interpretations of those laws that were at issue in the litigation, and so the “blame” for any loss would be rightly assigned to the Obama DOJ.  By contrast, the First Amendment challenge that overturned the Stolen Valor Act – making it illegal to claim falsely to have been awarded a military medal – was enacted in 2005, when George W. Bush was President, and it was the Bush Justice Department that brought the criminal case that led to the challenge. Because the Solicitor General was plainly obligated to defend that law, we did not “attribute” that loss to the Obama Administration.

Most of the cases in which the United States participated at the Court last Term, either as a party or an amicus, did not challenge the constitutionality of a federal statute, which the Solicitor General will almost always defend (but see Attorney General Eric Holder’s refusal to defend the Defense of Marriage Act).  Rather, they involved the interpretation of a statute or a rule, or a policy or other position taken by a federal agency, often not initially in the Obama Administration.  For each of the 48 cases in which the United States participated as a party or an amicus, we have attempted to determine the first time that the executive branch urged the position that was being challenged (and in cases involving the constitutionality of statutes, who signed them into law) on the theory that in at least some of those cases, a prior administration, rather than the current one, should be taking the loss or claiming the victory.  Indeed, using that methodology, most of the wins and losses (with the exception of the two biggest cases of the Term for theUnited States, Obamacare andArizona immigration) are attributed to prior administrations.

Relying on that approach, it was still difficult in some cases to determine when the position argued in the Supreme Court was first taken, especially in cases in which the government filed an amicus brief.  Part of the difficulty is attributable to the fact that the overall positions of the United States on issues like criminal law and immunity from civil liability are reasonably well-defined: they favor prosecutors and oppose liability.  But in some cases in those areas, the issue before the Court was an extension or new application of prior law, and the government had not taken a stance on the precise issue until the case reached the Supreme Court.  In those cases, we attributed the outcome to a prior administration, generally erring in that direction on the theory that there would probably be some indication in some brief if the federal government changed its position significantly.  Finally, in two cases – Dorsey v. United States and Setser v. United States – the Solicitor General declined to defend the positions taken below by the United States as a party, and filed an amicus brief supporting its former opponent.  The switches had no effect on the overall won-loss record, because the Court agreed with the newly minted amicus position in Dorsey, but rejected it in Setser, although the changes in positions made them both Obama cases and they were scored as amicus, not party cases.

On that basis, we determined that a prior administration was responsible for the positions taken (or the defense of the constitutionality of a statute enacted before January 20, 2009) for 41 of the 55 issues decided, with the position being upheld 22 times and rejected 19.  For the Obama administration, there were only 14 issues (9 in the two big cases alone), with 7 wins and 7 losses among them.  In cases in which the United States was a party, prior administrations were only 8-14, whereas in amicus cases, they were 14-5.  There were no party cases apart from the two major ones for which the Obama administration was responsible, and in its 5 amicus cases, it lost 4 of them.  Finally, although for much of the 2011 Term the Court was considering actions or positions that pre-dated the Obama administration, future Terms will catch up and adjudicate the validity of many executive branch decisions made during the Obama era.

For those who cannot resist creating a final batting average of some kind, we have used the total issues decided and whether the United States won or lost each.  Since the United States prevailed in slightly more than half the issues decided (29 of 55), it had a .517 batting average.  If we looked only at wins or losses (treating both the big cases as wins) and eliminated the separate issues, the numbers would be 25 of 48, upping its average slightly to .521.  Some might argue that since there is one winner and one loser in every case, the law of averages should get the government to .500.  But then no major league player today hits .400, and Ty Cobb’s .367 lifetime average is unlikely ever to be surpassed.   Perhaps all of this establishes only that keeping score or grading the performance of the Office of the Solicitor General is an endeavor on which it is very difficult to reach agreement.  At the very least it shows that the answer to the question, “How well did the SG do last Term?” is not an easy one to answer accurately and fairly to all concerned.[Note:  For those who would like to “see our homework,” we have created a separate chart for each of the 48 cases, identifying each issue we considered significant; stating the Solicitor General’s position on that issue; indicating how the Court decided it (including the votes); and setting forth our conclusion (and how we got there) on whether the win or loss is properly attributable to an Obama-originated position or to someone else.]

Supplement:  November 5, 2012

Shortly after SCOTUSblog posted this essay, an eagle-eyed Justice Department attorney who does civil appeals called to our attention the omission from our charts and hence our analysis the participation of the Solicitor General in Mayo Collaborative Services v. Prometheus Laboratories, Inc. proving once again how much attention is paid to the contents of SCOTUSblog.  We were aware of this case, but had dropped it from our analysis at an earlier stage for reasons that we discuss below.  But we thought that we owed it to our readers to explain why we did not include this and four others, all of which underscore one of our main points: how difficult it is to assign meaningful grades to the Solicitor General.  Although one or two of these cases might have, on reflection, albeit with some reservations, been included in our compilation, their inclusion would not have altered its basic conclusions.  Nonetheless, to allow the reader to make that judgment, this Supplement explains each case, but without a chart for it.

Mayo Collaborative Services v. Prometheus Laboratories, Inc., No. 10-1150, 132 S. Ct. 1289 (2012). The United States filed an amicus brief in this patent case in support of neither party.  The issue presented was whether an improved method of treating a patient with a man-made drug relying on natural metabolic processes of the human body qualified for protection under 35 U.S.C. § 101.  Following the practice of the Patent & Trademark Office, which for many years had issued such patents, the Solicitor General supported that aspect of the claim, but urged the Court to find the claims are likely to be invalid under what would have been narrower grounds under Sections 102 and 103. The Court unanimously set aside the claims under Section 101, rejecting the SG’s position, but reaching the result urged by the government.  This is probably a “loss” for the SG (but not for the Obama administration), even though the patent was rejected as the SG had urged in its brief supporting neither side.

Credit Suisse Securities (USA) LLC v. Simmonds,  No. 10-1261, 132 S. Ct. 1414 (2012).  The United States filed an amicus brief in this case in support of neither party.  The issue presented was whether and under what circumstances the statute of limitations for private insider trading actions brought under Section 16(b) of the Securities Exchange Act of 1934 may be tolled for equitable reasons.  Following the long standing position of the Securities and Exchange Commission, the Solicitor General argued that Section 16(b) is equitably tolled until a reasonably diligent security holder knows or should know the facts underlying his claim.  The Court unanimously (save for Chief Justice Roberts, who took no part in the case) followed the government’s position to vacate the judgment of the Ninth Circuit and remand the case to determine whether equitable tolling ought to apply in this situation.  This is probably a “win” for the SG (but not specifically for the Obama administration).

Douglas v. Independent Living Center of California, Inc.,  No. 09–958, 132 S. Ct. 1204 (2012).  The question presented was whether private parties may assert a cause of action against state reductions of Medicaid reimbursement rates alleged to violate Section 1396a(a)(30)(A) of the Medicaid Act.  The SG filed a brief supporting California, which argued that no such cause of action is available under the Medicaid Act.  Shortly before oral argument, the relevant agency of the federal government approved the challenged rates, in part, and the state agreed to abide by that decision.  In a supplemental letter brief, the SG urged the Court to decide the impact of that development, but a majority of the Court, in an opinion written by Justice Breyer, declined to decide that question, instead remanding to the court of appeals for its initial consideration.  The four dissenters would have answered the question in favor of finding no such cause of action, as the government urged.  Although it is not entirely clear from the briefing in this case, it appears that the government had previously taken the position that private suits involving Medicaid decisions by states were not available, and so the SG’s position here is probably not attributable to the Obama administration, although the decision to ask the Supreme Court to decide the impact of the recent developments is.  Overall, this one is too tough to call, both on the win-loss side and on which administration should get credit or blame for the outcome.

Howes v. Fields, No. 10–680, 132 S. Ct. 1181 (2012).  The issue in this case was whether a prisoner is “in custody” for purposes of Miranda v. Arizona, when he is isolated from the general prison population for questioning about conduct occurring outside the prison.  The SG filed an amicus brief supporting the state, urging the Court to reject the categorical rule below – whenever a prisoner is separated from the general prison population, the prisoner is “in custody” for Miranda purposes. The brief also argued that, under the facts of this case, Miranda was not triggered without the categorical rule. That position is consistent with long-standing Department positions seeking to limit the reach of Miranda.  A six-Justice majority agreed that there is no such categorical rule and that Miranda was not triggered in this case.  Thus, on reflection, this case should probably have been counted as an amicus win for the SG.

Pacific Operators Offshore, v. Valladolid, No. 10–507, 132 S. Ct. 680 (2012).  An employee of a company doing offshore drilling spent ninety-eight percent of his working time on the rig, but his death occurred while on land.  The federal administrative agency that heard the claim rejected it in 2008 solely because of the situs of the accident.  After the Ninth Circuit reversed that decision, and while the case was before the Court, the SG rejected the agency’s position that there is a situs-based limitation, on the ground that it is inconsistent with the language of the statute, but he proposed a different test from the one adopted by the Ninth Circuit.  The Court unanimously agreed that the language precluded a situs-based limitation, and a seven-two majority agreed with the test adopted below, which is different, but not very different, from that offered by the SG.  The change in positions clearly makes this case attributable to the Obama administration.  Because the respondent federal agency involved is an adjudicator, rather than an administrator of programs, the SG’s role could be seen more as an amicus, albeit one that shifted positions quite significantly, rather than that of a party.  In addition, the SG’s main position on the lack of a situs requirement was sustained, but the Court did not adopt the actual test that he proposed.  For these reasons, and on balance, we would treat this more as an amicus than a party case, as more of a win than a loss, and as a clear Obama administration position in the Court.

In addition, after argument in two SG cases, the petitions were dismissed as improvidently granted; in one the United Stateswas a party, Vasquez v. United States (11-199), 132 S. Ct. 1532 (2012), and in the other the SG filed an amicus brief, First American Financial Corporation v. Edwards (10–708), 132 S. Ct. 2536 (2012) .  A final amicus case, Kiobel v. Royal Dutch Shell Petroleum (10–1491), was re-argued on a related, but broader, issue this Term.