Call for the Views of the Solicitor General in Original Jurisdiction Proceedings: Solicitor General as Advisor or Advocate?

Abstract

The Call for the Views of the Solicitor General (CVSG) is not a new tool in the Supreme Court’s arsenal and it has been utilized by the Court for decades in the exercise of its appellate jurisdiction. Interestingly, it is even more commonly used in the Court's original jurisdiction, particularly at the motion for leave to file stage. The Court issuing CVSGs at this early stage in original jurisdiction proceedings could have dramatic implications: in the case of states, because the Court has original and exclusive jurisdiction, an opportunity to be heard in front of the Supreme Court is their only chance at a day in court. A CVSG could be a powerful tool in determining whether parties will get recourse. Out of 140 cases between states that the Court has rendered a decision on, 17 involved a CVSG. Moreover, a quarter of those 17 cases where the Court has issued a CVSG in an interstate proceeding have occurred in the past five years. The Court seems to be turning to this device more often in original jurisdiction proceedings than it has in the past. In most of these cases, however, it’s likely not contentious. It’s not unusual for the Court to defer to the SG with a CVSG in matters concerning complex regulatory or sovereignty issues. Of these 17 cases, 16 deal with standard original jurisdiction subject matter: resource law, boundary issues, etc. For the Court to engage the objective advisory function of the SG in these types of cases is not only probably innocuous, but likely beneficial. The issue lies not in the trend of the higher frequency of CVSGs in original jurisdiction proceedings, but rather in circumstances when the CVSG is issued where it is difficult, if not impossible, to discern whether the Court is seeking to engage the SG as an objective advisor or as an advocate of the United States. Nebraska & Oklahoma v. Colorado is just a case. Nebraska and Oklahoma are seeking relief under the Supremacy Clause from Colorado’s enforcement of its recreational marijuana regulatory scheme in violation of the Controlled Substances Act. This case is wholly unlike other original jurisdiction proceedings where a CVSG has been issued, and given the complex federalism issues implicated by the subject matter, in addition to policy concerns with which the DOJ has been directly involved, it is difficult to imagine how the SG’s advocacy role would not be engaged in such a brief to the Court. This paper will argue that a CVSG at this early stage, in a proceeding where federal interests are so clearly entangled, should be met with wariness. The Court asking the advocate of the federal government whether Nebraska and Oklahoma should get to have their day in Court ought to raise suspicion. With this case being singularly unique, perhaps it is anomalous, and maybe even an appropriate use of the CVSG on balance. Or perhaps it, like the increase of the CVSG in original jurisdiction proceedings on the whole, is the beginning of a trend that could have major implications for the justiciability of claims between states before the Court.