Reviewed by Todd A. Curry, Department of Political Science, Western Michigan University. Email: todd.a.curry [at] wmich.edu
Ryan Black and Ryan Owens went searching for the Holy Grail. In the vein of countless researchers that came before them, Black and Owens examined the effect the presence of the Office of the Solicitor General (OSG) has on the Supreme Court under a variety of different situations. However, the authors attempted to take an additional, much more difficult step, going beyond previous research. They did not stop at merely demonstrating how successful the OSG is before the Supreme Court, they attempted to examine, and quantitatively test, if the OSG actually influences the behavior of Supreme Court justices. And they have succeeded.
Scholars who have researched the solicitor general have never had difficulty showing that the Supreme Court treats the OSG differently than other actors. From their success rates on certiorari, to their success on the merits, even continuing to language-borrowing in Supreme Court opinions, we all know that the OSG is different. Yet, a common problem plagues those of us researching the OSG. While volumes of articles and books demonstrate these relationships, there has been difficulty in explaining whether the OSG influences the Court to behave in this fashion, and if they do, the reasons behind it. Black and Owens definitively demonstrate that the OSG influences the Court; however, they have difficulty explaining why.
Black and Owens show that the OSG can cause the Court to behave in a fashion they otherwise would not using mix of previously unused data and cutting edge quantitative techniques. First, the authors use Justice Harry Blackmun’s memos to code how the individual justices act in response to the OSG’s recommendations. This gives the authors the ability to assess whether change occurred when a call for view of the solicitor general (CVSG) is requested by the Court. Second, the authors use coarsened exact matching (CEM) to examine how the justices would behave with a similar case that did not have the OSG as a party. CEM allows the construction of a data set pairing nearly identical cases that differ on the variables of interest. This allows the authors to not just establish the relationship, but demonstrate causation, as the goal of CEM is to condition one's data to be like that of an experiment.
The first three chapters nicely set up the foundation for the rest of the book. Chapter 1 sets out the question the authors will endeavor to answer, namely, does the OSG systematically influence the Court to behave in a way they otherwise would not behave? Chapter 2 explains the history of the OSG, dating [*516] to before its inception, documenting its origin, and demonstrating the unusual level of success enjoyed by the office. Chapter 3 lays out the previously hypothesized reasons for the OSG’s propensity to win. As Black and Owens point out, while each of the theories attempts to explain why the institution may be so influential, the studies that spawned these theories were unable to test specifically for influence.
There are three broad theories to explain the success of the OSG, and each of them are directly tested by Black and Owens. The first strand of research argues that while the OSG is statutorily housed with the executive branch, they actually have strong ties to the judiciary, primarily the Supreme Court (Caplan 1987). Caplan claims that this tie is so strong, that the OSG could be considered the “tenth justice.” Caldeira and Wright (1988) claim the OSG not only plays a significant gatekeeping role for the Supreme Court with regards to agenda setting at the certiorari stage, but that it also gains a significant amount of its institutional legitimacy from this process. In their view, the OSG acts as a filter for cases, screening out those they feel to be uncert-worthy. This institutional legitimacy is increased further by the Supreme Court’s use of the calls for views of the solicitor general (CVSG), where the OSG has the history of acting as a true ‘friend of the Court’ by giving impartial, neutral readings of the law. This role makes Pacelle (2006) refer to the office more as the fifth clerk than the tenth justice.
The second strand of research focuses on the role of the OSG acting as an agent of the current presidential administration. This research claims the OSG is an ideological representative of the president before the Supreme Court. If the solicitor general is an ideological representative of the president, then the OSG may not be as effective at playing the role of the “tenth justice” or that of the fifth clerk. Bailey, Kamoie, and Maltzman (2005) claim that the closer ideologically the OSG is to an individual justice, the more likely that justice will grant certiorari to the government’s petition or rule in favor of the government on the merits. Ultimately, the findings of Bailey et al. tell us that, while the OSG does experience a significant amount of success because of their institutional status as an agent of the Court, their institutional propensity to win is conditioned upon the ideological distance from the OSG to any individual justice. A similar view is purposed by Pacelle (2003) when he describes the OSG as only appealing cases they feel highly likely to win with regard to the makeup of the Court.
The third branch of research claims the success of the OSG may stem from the fact that they are the consummate repeat player. Galanter (1974) was the first to formally articulate the advantages that repeat players have, arguing that because of repeat players’ numerous advantages, all things being equal, repeat players should win more often than one-shotters. Repeat players experience significantly reduced transaction costs because of their familiarity with the game, the actors playing the game, and the rules of the game. Furthermore, repeat players are more experienced in the actual process of litigating, thereby becoming more proficient and more likely to win. Not only do the individuals within the Office benefit because of their repeated appearance before the Court, but also the [*517] institutional resources further increase their propensity to win. McGuire (1998) focuses on a different aspect of the repeat player theory, hypothesizing that the success of the lawyers within the OSG is no different from than the success rates of equally experienced litigators. He claims that the institutional advantages of the OSG do not exist, but since the office is populated with highly experienced attorneys, it may appear as though they do.
Over the course of Chapters 4-7, Black and Owens empirically test the veracity of these alternative explanations. Chapter 4 examines decisions made by the Supreme Court at the agenda setting stage by looking at decisions of the justices on certiorari. Using Blackmun’s docket sheets and cert memos, Black and Owen examine a justice’s propensity to agree with the recommendation from the OSG. They find no evidence of the strategic selection theory, attorney experience theory, or the ideological agreement theory. Their general finding claims justices who were ideologically predisposed to agree with the OSG do exactly that, but also to a somewhat surprising extent, justices who are not ideologically aligned with the office also agree with the OSG. This finding was consistent across voluntary submissions and CVSGs, and various levels of attorney experience. The findings of this chapter supported none of the previous explanations concerning the influence of the OSG.
In Chapter 5, the authors examine the level of influence the OSG has on the decision on the merits. Answering claims concerning the repeat player and attorney experience theories, Black and Owens demonstrate that when the data is matched based on equivalent levels of experience for attorneys, then the OSG still receives a considerable advantage at the merits stage. Furthermore, the authors matched attorneys whom had left the OSG with current OSG attorneys and found that the currently employed attorneys were still significantly more likely to win. The CEM process allows the authors to conduct this chapter like an experiment, convincingly demonstrating that the OSG is able to influence the aggregate decisions of the Court on the merits.
Chapter 6 examines the propensity of the Court to borrow language from the OSG briefs in their written decisions. Again using CEM, the authors match similar OSG briefs with non-OSG briefs to examine whether the office has influence over the shape of the legal opinions. By using plagiarism software, the authors find that the justices are almost always more likely to borrow language from an OSG brief. Even when a brief from the OSG that lost on the merits is compared to a non-OSG brief that won on the merits, the Court is equally likely to borrow from each brief. Examining the other controls for this chapter, the theories that attempt to explain the success of the OSG do not fare well.
Chapter 7 builds on the work of Hansford and Spriggs (2006) and asks perhaps the most important question in this book; does the OSG affect the way the Supreme Court treats precedent in their decisions? To examine this, Black and Owens begin by turning to the OSG briefs to find specific instances requesting the Court to handle a precedent in either a positive or negative fashion. Then, following the application [*518] of the CEM technique, the authors run a series of logistic regressions to examine under what conditions the Court follows the recommendation of the OSG. The findings shed significant light on the nature of the relationship between the OSG and the Supreme Court. The Court takes recommendations from the OSG seriously. They are most likely to follow the recommendation of the OSG when they have been invited to submit a brief and least likely to when the OSG is party to the case. This lends credence to the findings by Wohlfarth (2009) that the Court views the OSG most favorably when they are least politicized. The findings of the previous chapters, which call into question each of the theories regarding OSG influence, causes the authors to claim that the real reason for the influence of the OSG is professionalism and objectivity.
This book has some significant strengths and one weakness. First, the book is not presented solely to political scientists. Gone from this book are pages and pages of endless tables that are difficult for a lay audience to understand. Instead, the book features graphic displays that convey the same information and are easy to understand. Second, while the discussions of the methods used are available to the interested reader, the bulk of the topic is left for a detailed appendix. Third, and most importantly, this is the first quantitative work that convincingly demonstrates the amount of influence that the OSG has concerning the Supreme Court. While many previous works show the OSG is successful before the Court at the various stages, this is the first work that demonstrates clearly and convincingly that it is because of influence.
The one weakness of this book is made more apparent by how systematically the authors refute the theories of OSG influence: Black and Owens do not directly test their alternative explanation. They claim the OSG influence is a function of their professionalism and objectivity. While the authors claim that the findings of some of their chapters show evidence that this is the causal factor, they come to this conclusion only by debunking each of the other theories. They do not subject their theory to the same rigor as the others. This is likely because it would be extremely difficult to operationalize professionalism and objectivity. With that said, this omission in no way takes away from the significance of this work.
Overall, this work by Black and Owens should be considered one of the top two books available solely on the topic of the solicitor general. The logical path the text follows combined with the nature in which the findings are presented make it valuable not only to political scientists and legal scholars, but also to lay people interested in the OSG or the Court. Anyone teaching a graduate level judicial behavior seminar now has a difficult decision. My recommendation, assign Pacelle (2003) and this book, and your students will be well on their way to understanding the Office of the Solicitor General. While the Grail has been uncovered, we still cannot see fully inside the box, but this book has vastly increased our knowledge of the relationship between these two important institutions.
Bailey, Michael A., Brian Kamoie, and [*519] Forrest Maltzman. 2005. “Signals from the Tenth Justice: The Political Role of the Solicitor General in Supreme Court Decision Making.” American Journal of Political Science 49: 72-85.
Caldeira, Gregory A., and John R. Wright. 1988. “Organized Interests and Agenda Setting in the U.S. Supreme Court.” The American Political Science Review 82: 1109-27.
Caplan, Lincoln. 1987. The Tenth Justice. Alfred A. Knopf: New York.
Galanter, Marc. 1974. “Why the ‘Haves’ Come out Ahead: Speculations on the Limits of Legal Change.” Law & Society Review 9: 95-160.
Hansford, Thomas G. and James F. Spriggs. 2006. The Politics of Precedent on the U.S. Supreme Court. Princeton University Press: Princeton.
McGuire, Kevin T. 1998. “Explaining Executive Success in the U.S. Supreme Court.” Political Research Quarterly 51: 505-526.
Pacelle, Richard L. 2003. Between Law & Politics: The Solicitor General and the Structuring of Race, Gender, and Reproductive Rights Litigation. Texas A&M University Press: College Station.
______. 2006. “Amicus curiae or amicus Praesidentis? Reexamining the role of the solicitor general in filing amici.” Judicature 89: 317–32.
Wohlfarth, Patrick C. 2009. “The Tenth Justice? Consequences of Politicization in the Solicitor General’s Office.” The Journal of Politics. 71: 224–237.
Copyright 2012 by the Author, Todd A. Curry.