The gatekeeping role of the Office of the Solicitor General at the certiorari stage

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2022-05-02

Authors

Bird, Christine Catherine

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Abstract

The Office of the Solicitor General (OSG) is a key repeat player in the U.S. Supreme Court decision-making process. It maintains a storied co-dependent relationship with the Supreme Court and is the most successful litigant at the merits stage in appellate litigation. Yet, we understand very little about the OSG’s role in the policy making process at the agenda-setting stage. In this dissertation, I seek to add to the discussion of agenda setting and organizational influence in judicial policymaking. Instead of considering the appointed head of the Office, the Solicitor General, I dig deeper into how the full bureaucratic entity behaves in the context of a broader policy process. I present evidence that the OSG’s most consequential role is not at the merits stage, but as an organizational entity talented and empowered to gatekeep access to the Supreme Court. I employ a novel dataset I collected and coded of more than 2,500 certiorari-stage cases involving the Office of the Solicitor General between the 1999 and 2019 terms. I leverage a secondary text as data dataset from cert-stage briefs filed by the Office of the Solicitor General and its opponents. I show the Office of the Solicitor General is extraordinarily successful at keeping cases off of the Supreme Court’s docket. I show evidence of the OSG’s concerted efforts to convince the Supreme Court to deny access (and quickly) to its substantive docket when the request for review disrupts the government’s legal and policy goals. I show the Office of the Solicitor General, due to its high case load and its privileged position with the Supreme Court, develops a process to strategically prioritizes its effort in cert-cases with highly sophisticated opponents and/or in issue areas central to its institutional agenda. Ultimately, I demonstrate the Office of the Solicitor General manages its role as an institutional political entrepreneur by prioritizing a defensive legal strategy and works to gatekeep access to the Supreme Court’s agenda.

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