The depth of the insularity required to pen this little op-ed on the SCOTUS blog is impossible to fathom. The author seems completely unaware of the world outside of Harvard Law School graduates, the Solicitor General’s Office and the Supreme Court. The burning question she is addressing is: should the government’s counsel before the Supreme Court – that is, the Solicitor General’s (SG’s) office – be favored only in those cases in which they have a direct interest, or should the SG be favored in as many cases as possible, even where their interest is much more attenuated?
Thus the title of the article: “Too Much Of A Good Thing?” Apparently, some of us just can’t get enough of the SG.
The SG, notes the author, “…has been an enormously successful litigant”. Put another way, the government most often wins in its own courts.
But let’s pretend:
Given the high quality of the SG’s work in general, and the apparent helpfulness of the SG’s amicus briefs, many observers seem to approve of the status quo, and applaud the SG filing numerous amicus briefs, and their influence on the Court.
She couldn’t possibly believe the drivel she’s admiring here. She went to Harvard herself. She’s not stupid; she just thinks her audience is.
But alas, she just echoes it all in her own piece:
…many scholars have lauded the SG’s active role in Supreme Court litigation, noting that the SG is an expert and unbiased source of information for the Court.
That “many scholars” feel that way is a great argument for a complete overhaul of legal education, especially if they also feel that “…the SG is an expert and unbiased source of information.”
I’m sure the SG’s office delivers high quality work. So do many other litigants’ counsel. But there’s something else to consider: they’re also wrong a lot.
This Court has a special obligation to administer justice impartially and to set an example of impartiality for other courts to emulate. When the Court appears to favor the Government over the ordinary litigant, it seriously compromises its ability to discharge that important duty…because I am so firmly opposed to the Court’s favored treatment of the Government as a litigator, I would dismiss the writ of certiorari as improvidently granted.
He was writing in dissent, of course.
Isn’t it odd that in our system of justice, it’s an open secret that at least one kind of litigant is heavily favored in the nation’s highest court? You would think that a candid admission that one litigant is to be favored over all others might generate a little heat out there in flyover country; but then the fact of it is hardly reported at all.
But whether people are aware of it or not, the SCOTUS relationship with the SG’s office is a big problem. In childish terms that might actually be appropriate in this context, judges on other courts will see the SCOTUS playing favorites, and who they’re playing favorites to, and do the same thing, with the same litigants, or types of litigants.
And that winds up explaining a lot. Although would that it were otherwise.