When Agencies Don’t Appear on the SG’s Briefs

When the Solicitor General files briefs in the Supreme Court, the briefs always bear the names of other lawyers from the Department of Justice. In special cases, however, officials from other agencies sometimes sign on, too. For instance, in cases bearing on commerce, national security or foreign affairs, the SG’s briefs might respectively bear the names of officials from the Commerce Department, the Department of Defense or the State Department. The point of this unusual gesture, it seems, is to show the Court that other relevant agencies have been consulted for their expert views and are standing by the Department of Justice in what must be an important case.

But what if a case seems to involve issues pertinent to agencies besides the DOJ, and yet those other agencies don’t appear on the SG’s brief? Does that surprising absence mean that officials from the other agency disagree with the position of the Solicitor General? Has there perhaps been an intense debate within the executive branch—an exchange of views wherein a purportedly expert agency has dissented from the litigation position ultimately taken by the United States? These kinds of thoughts can lead jurists to discount or even discredit the position that the Solicitor General has taken. The practice of including extra agency names on the SG’s briefs is thus a two-edged sword–and one that seems to have been cutting the SG increasingly frequently in recent years.

Justices sometimes pick up on the fact that SG briefs are missing names and then bring up the point during oral argument. As Will Baude notes over at SCOTUSblog, this just occurred in Armstrong v. Exceptional Child Center, which raises a very important and complicated issue implicating the role of the Department of Health and Human Services. The United States filed a brief, but its cover reveals only the names of DOJ officials—nobody from HHS.

This didn’t escape the notice of Justice Kagan—herself a former Solicitor General. As someone unusually familiar with the workings of the executive branch, Justice Kagan was well-positioned to probe the matter. Here is a portion of her line of questioning directed at the SG’s Office:

MR. KNEEDLER: […]  If you’re income qualified or you get hospital services, you can sue about that.

JUSTICE KAGAN: Judging from the – the names on the brief, I take it that HHS does not agree with that statement.

JUSTICE KAGAN: Judging from the names on your brief […] or the absence of names on your brief, I take it that HHS does not agree with that statement.

Mr. Kneedler, the uber-veteran SG attorney at the podium, didn’t take up Justice Kagan’s inquiry, perhaps because he preferred to let the question go without a direct answer.

If deliberate evasion is indeed what happened, you can hardly blame Mr. Kneedler. Judicial inquiry into behind-the-scenes thinking in the executive is at the very least embarrassing, possibly corrosive of candid deliberation, and—in an extreme instance—a separation-of-powers problem.

For an example of an extreme case, consider the blurb below from Alison Frankel’s coverage of Judge Posner’s truly remarkable series of orders last year in Motorola v. AU Optronics:

On May 1, the 7th Circuit panel judges sent a letter to the U.S. State and Commerce departments — which hadn’t specifically signed the Justice Department amicus brief — inviting them to file their own brief to address “the potential effects on foreign relations resulting from the issues presented by this case.”

Solicitor General Donald Verrilli responded with a polite-but-firm letter to the 7th Circuit on May 19. He had personally authorized the amicus brief urging reconsideration of the panel’s decision “on behalf of the United States after appropriate consultation with interested components of the federal government,” Verrilli wrote. “It reflects the views of the United States on the matters expressed therein. Neither the United States nor any of its departments plans to file an additional brief at this stage of the appeal.”

That was not a good enough answer for the 7th Circuit panel. On May 22, Posner and the other judges issued a quite stunning order directing the solicitor general to name the government officials he consulted before sending the May 19 letter, to describe the nature of those consultations and to explain exactly what he meant when he said that Justice’s amicus brief reflects “the views of the United States.”

Happily, the Seventh Circuit eventually backed down.

All this raises the question of whether it’s actually worth having the practice of occasionally including non-DOJ officials on SG briefs. From the Solicitor General’s perspective, the punch of added names in one case has to be weighed against the deflationary effect of having names missing in others.

Viewed more abstractly, giving other agencies the option to sign SG briefs effectively gives those other agencies a bit of authority over how the US represents itself in the Supreme Court. An agency that has the opportunity to sign onto an SG brief has in effect obtained a significant bargaining chip. Much like a Justice at the Court, the extra agency might demand changes to the brief as a condition of its “join.” This might be good insofar as the expert agency actually has expertise that should influence the SG’s filings. Needless to say, however, the SG’s office is unlikely to be pleased with this non-trivial diffusion power within the executive branch, not least because it weakens the SG’s office itself.

There’s also the serious possibility that judges might erroneously infer something from the fact that certain names are absent from briefs. After all, officials sometimes stay off briefs for reasons unrelated to inter-agency intrigue. For example, either the OSG or the other agency itself might not think that the other agency has a significant institiutional interest in the case, even where an outsider might assume otherwise. In those cases, the dog that didn’t bark isn’t a clue but an irrelevance. Yet the SG might have difficulty assuaging even erroneous concerns of this kind, particularly since they are usually aired (if at all) during oral argument.

My sense is that the Solicitor General has gotten more questions about missing names in recent years, possibly because three of the last four Justices to be confirmed served in the SG’s office. If there is such a pattern, the SG might have to rethink or re-articulate its policy on extra agency names–even though that policy change would likely come with an institutional cost of its own.

Originally posted on PrawfsBlawg.

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