119. The Federal Government as a Party

Each of the last two terms, the United States has been a party to at least half of the cases on the Supreme Court's merits docket. That's a big deal, and not just because it's *never* happened before.

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Every Monday, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current work, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re enjoying the newsletter, I hope you’ll consider sharing it (and subscribing if you don’t already):

Among the overwhelming flood of actions coming out of the new administration over the past week, Friday saw the first public movement from the Acting Solicitor General, Sarah Harris. Harris filed a letter withdrawing the federal government’s friend-of-the-Court brief in the Louisiana redistricting case that the Court is set to hear later this term, and also submitted four motions seeking to pause the briefing schedule in four additional cases in which the federal government is one of the parties, all of which have been granted but not yet set for argument—signaling that the Trump administration may soon flip the government’s position in those cases, too.

It stands to reason that these won’t be the only examples of the Justice Department changing tack in cases already before the Supreme Court—which raises important questions all their own about whether/when it’s appropriate for DOJ to do so. I’ll aim to tackle those questions in a future issue.

But I wanted to use this week’s issue to explore a related but distinct point—about just how much the Court’s “merits” docket (those cases to which the justices have agreed to give plenary review) has come to be dominated by the federal government as a party. Of the 62 cases (counting consolidated pairs as one each) on the plenary docket for the current term, 31 involve a federal petitioner or respondent (even I can figure out that percentage). According to data compiled by Georgetown Law 3L Alyssa Negvesky and me, that would make OT2024 only the second term ever in which cases with federal parties accounted for at least half of the merits docket. The only other term was … OT2023 (last year).

Of course, it’s long been true that the federal government is the most frequent litigant before the Supreme Court—part of why the Solicitor General is sometimes referred to as “the tenth justice.” But historically, federal parties were involved in a modest plurality of the Court’s cases during any given term—and never even close to a majority. As I explain below, these recent data points are not just evidence of yet another significant shift in the nature of the cases the justices are choosing to decide; they reflect an even broader shift in major public law litigation in the United States—where more and more of our federal-level policy disputes are being resolved not in the legislative chambers of the Capitol, but in legal disputes between private litigants (or states) and the federal government.

For better or worse, that shift necessarily puts the justices not only on the front lines of the culture wars in a growing number (and even larger percentage) of cases, but often in contexts in which they are more likely to divide along ideological lines than in the cases that comprised more of the merits docket a generation ago. More on all of this in a moment; but first, there’s also a lot of news.

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On the Docket

Last Monday’s regular Order List came with one big surprise—a “summary” vacatur in favor of Oklahoma death row prisoner Brenda Andrew,¹ who is challenging her conviction and sentence on the ground that the state was wrongly allowed to introduce evidence at trial about her sex life and her failings as a mother and wife, much of which the state later conceded was irrelevant. (I wrote a bit about Andrew’s petition, and how long the Court had been sitting on it, in an earlier issue; the fact that the Court was disposing of the case in a written opinion explains at least some of the delay.)

The lower courts had rejected Andrew’s post-conviction pleading on the ground that the Supreme Court had never clearly established that the erroneous admission of prejudicial evidence could violate the Due Process Clause. The unsigned majority opinion on Monday disagreed—reasserting that, in sufficiently egregious cases, erroneous admission of prejudicial evidence does violate due process—and sent Andrew’s case back to the lower courts to decide if it qualifies as such. Justice Alito concurred in the judgment; Justices Thomas filed a lengthy dissenting opinion, in which Justice Gorsuch joined. (That doesn’t guarantee that the vote was 7-2, although it sure seems likely.)

We also saw two interesting rulings on emergency applications last week. On Wednesday, Justice Sotomayor, as circuit justice for the Second Circuit, issued an administrative stay while she (and the full Court) considers a request from four federal criminal defendants to prevent new trials from going forward that they claim would violate the Double Jeopardy Clause. (Two years ago, the justices had held that the Second Circuit had wrongly affirmed the defendants’ convictions; the new trials were the result the Second Circuit ordered on remand.) I’m not sure what the full Court will do in this case, but given that the Double Jeopardy Clause creates a right not to be tried in the first place, and that the Second Circuit’s mandate was set to issue on Friday, Sotomayor’s administrative stay makes sense if for no other reason than to freeze the status quo while the Court decides.

And on Thursday, the full Court granted what had been the Biden administration’s last emergency application—staying a “nationwide” injunction that a Texas district court had issued against the Corporate Transparency Act. As I’ve previously noted, the Biden administration hadn’t just sought a stay; it also asked the Court to grant certiorari “before judgment” to decide if federal courts ever have the power to issue such universal relief. The Court appears to have declined that invitation. Justice Gorsuch wrote a brief opinion concurring in the stay, but noting that he would also have taken up the nationwide injunction question. Justice Jackson wrote a not-much-longer opinion dissenting from the stay—noting that, even if the federal government was likely to prevail on the merits, it couldn’t show the requisite irreparable harm since it had already delayed the CTA’s implementation. (It’s refreshing to see justices publicly objecting to the absence of irreparable harm in cases in which they’re clearly sympathetic on the merits.)

The upshot should have been that the CTA would go back into effect, except that it’s now subject to a different nationwide injunction issued by a different Texas district judge. In normal times, the Justice Department would immediately use the Supreme Court’s stay in the first case as the basis for obtaining a stay in the second. But this Justice Department appears to be moving … slowly … on that score.

Finally, the Court added three more cases to its docket on Friday (two of which it consolidated)—a quietly important case about Article III standing in class actions; and two more-obviously-important cases about whether Oklahoma’s public charter school program violates the federal Constitution by not allowing for the participation of religious schools. The Oklahoma Supreme Court held that including religious schools would have violated Oklahoma law, but the petitioners claim that, insofar as Oklahoma state law bars religious participation in the public charter school program, it violates the First Amendment’s Free Exercise Clause. Justice Barrett is apparently recused from the Oklahoma cases—which raises the distinct possibility that there are already five votes to side with the petitioners, since a 4-4 divide would force the justices to affirm the decision below without an opinion (something the Court would likely have tried to avoid if it were a substantial possibility). That would be quite a shift in Free Exercise Clause (and Establishment Clause) jurisprudence, if so. Either way, we’ll know soon; in both the Oklahoma and standing cases, the Court set accelerated briefing schedules—so that the disputes could be argued in April and decided by the end of June. (Why either case warrants such treatment is … not immediately obvious.)

With that, the Court enters its annual mid-winter recess. We expect a regular Order List at 9:30 ET today, but otherwise don’t expect anything formal other than miscellaneous orders (including on emergency applications) before the justices’ next Conference—which isn’t until Friday, February 21. And, as noted, Friday also brought the first flurry of activity from the Acting Solicitor General, more of which is likely in the offing. Even though some of the adverse parties in the cases in which the government has proposed pausing the briefing schedule have objected, it wouldn’t surprise me if the Court acquiesces across the board—which, among other things, would knock three cases (two of the four are consolidated) off of the merits docket, at least for this term.

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The One First “Long Read”:
The United States v. … Everybody?

The possibility that changes in the government’s position might have a significant impact on the Supreme Court’s docket for the current term is at least loosely related to a broader statistical point that’s part of the work that I’ve been doing with my Georgetown RAs—studying not just how much the Court’s docket has shrunk, but how the shape of the docket has evolved over the same time period. (Some of this work formed the basis for my earlier post about the disappearance of direct appeals in state criminal cases.)

At least as of now, the Court has granted plenary review in 62 cases or pairs of cases this term (the overall total is 71—with nine pairs of consolidated cases). And the federal government, in some shape or form, is a party in 31 of those 62 cases.² That’s … a lot! Indeed, other than last term (when the federal government was a party in 31 of the 60 cases in which the Court conducted plenary review), we couldn’t find a single other term in which federal-party cases accounted for at least half of the Court’s docket.³ Before the October 2020 Term (45%), the highest total we found was in OT2011, when federal parties were involved in 41% of the cases on the plenary docket (27/66).

Here’s a plot of the percentage of cases on the merits docket with federal parties going back to OT1990:

Of course, the federal government has always had a special relationship with the Court. But the trendline in the data seems undeniable. Nor did we notice an especially significant distinction between cases in which the government is “on top” (and is thus the party that sought Supreme Court review) or the party “on the bottom”; both categories have seen comparable increases.

Only the justices know why a higher percentage of the cases they’re taking are ones in which the federal government is a party. But it seems like more than a coincidence that the recent uptick in the trendline has come at the same time as a seemingly significant shift in civil litigation involving the federal government—including not just the uptick in nationwide injunctions against federal policies, but more lawsuits against states by the federal government (which, among other things, accounted for several of last term’s cases and one of the biggest cases of this term—Skrmetti). That’s not to say that all, or even most, of the federal-party cases are especially significant; there are a bunch of such cases this term of, at most, modest importance. But my anecdotal sense is that it’s in the big, divisive cases where most of the delta has happened, not in technical disputes over the tax code or the scope of federal criminal statutes.

As for why this shift matters, I see at least three different effects, each of which seem noteworthy in their own right. First, the more federal-party cases the Court is taking, the fewer cases it’s taking where the federal government is not involved. That’s not just state criminal cases (as previously discussed), but also fewer suits where private parties are challenging state laws; fewer disputes between private parties; and so on. As I noted in a prior post, as the Court’s docket has shrunk, the one category of cases that has stayed pretty flat are civil cases coming from the lower federal courts. If a higher percentage of those cases are ones in which the federal government is a party, it necessarily follows that a lower percentage are cases in which it is not.

Not only does that have docket-related consequences; it also crowds out at least some opportunities for non-governmental lawyers to argue before the Court—further exacerbating what my former UT colleague H.W. Perry has called the “elitification” of the Supreme Court bar. Indeed, although lawyers in the Office of the Solicitor General are often able to argue as friends of the Court⁴ and not just on behalf of a party, that’s not true for almost any other lawyers. So for each case in which there’s a federal party when 20 years ago there wouldn’t have been, that’s one less opportunity for a lawyer in private practice—further collapsing the pool of lawyers who are able (and called upon) to argue before the Court.⁵

Second, the more that the Supreme Court’s docket is dominated by cases in which the federal government is a party, the more tension there necessarily is in the Court’s relationship with the executive branch. After all, whether the case is high-profile or not, invariably, the question is whether some action by the federal government, or action the federal government is challenging, should or should not be sustained. Even if the federal government’s success rate (something we’re looking into) remains relatively consistent over the years, a greater percentage of federal-party cases means a greater number of cases in which the federal government is losing—and thus being thwarted by the Supreme Court. Indeed, my own anecdotal sense is that part of the reason for this uptick is because, across presidents from both parties, the federal government has become increasingly dependent upon unilateral executive action, rather than carefully calibrated statutes, to carry out its policy goals. And at least to me, a greater number of direct confrontations between the executive branch and the Court seems not especially healthy, regardless of the substance of those confrontations or their outcomes.

Third, and related, insofar as the delta in recent years is because of an uptick in ideologically charged confrontations between the executive branch and the Court, specifically, the result is a Court that is devoting more of its work to decisions that are going to be politically contentious—the very decisions that tend to (1) divide the justices into their camps; and (2) provoke the most public criticism. Justice White alluded to this concern in his majority opinion in Bowers v. Hardwick, where he worried about the kinds of cases in which “[t]he Court is most vulnerable and comes nearest to illegitimacy.” White invoked that concern as a reason to tread carefully before recognizing a right to same-sex sodomy, but the broader point—that the Court has a finite amount of capital to spend in politically sensitive cases without open-and-shut textual answers—is one we don’t talk about enough. The more that the justices are spending such capital in cases in which (1) they’re dividing ideologically; and (2) the president is either the immediate beneficiary or loser, the more that the Court will at least appear to the public to be taking political sides. If that’s happening once or twice a term, that’s one thing. But if it’s happening over and over again, it only ratchets up the real and rhetorical interbranch temperature.

It’s certainly possible to speculate that the particular jump over the last two terms was tied, in specific ways, to the Biden administration—and the volume of cases in which (1) its policies were challenged in the lower courts; and (2) it challenged state policies in the lower courts. If anything, though, I suspect that we’re going to see even more litigation involving the federal government in the weeks and months to come. To be sure, these cases may come from different lower courts than what we saw during the Biden administration. But for better or worse, government by injunction has become an increasingly popular approach across the ideological spectrum—which puts the justices right in the middle of a higher percentage of politically infused and nationally important disputes than was true as recently as 20 years ago. Indeed, I’ve been looking for a way to quantify what has felt true over the last few terms—that a greater total number, and, thus, a much higher percentage, of the Court’s cases are the especially controversial ones. This data may be one of the strongest indicators yet.

And although this shift may not be a problem worth a solution in its own right, like so many other ways in which the Supreme Court’s workload has shifted in recent years, it seems worth identifying and discussing this one, as well—and its consequences not just for the cases the justices are deciding, but for the public’s understanding of exactly what the Supreme Court … does.

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SCOTUS Trivia:
Where the United States (Literally) Sits

This definitely goes down as “trivia,” but it’s a random fact about the seating at counsel’s tables in the Supreme Court in cases in which the federal government is a party. In other disputes, counsel for petitioner(s)/appellant(s) always sits at the table to the left of the lectern (as one faces the bench); and counsel for respondent(s)/appellee(s) always sits at the table to the right.

But when the federal government is a party (and only then), its lawyers always sit at the table to the right—even when the government is the party “on top.”

Nothing of any consequence turns on this; it’s just yet another one of those old Supreme Court traditions that probably made sense at some point,⁶ and persists because of inertia.

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1. As I’ve explained before, a “summary” reversal (or vacatur) is when the Court conclusively decides an appeal at the certiorari stage—usually by issuing a brief, unsigned (“per curiam”) opinion explaining why the Court is wiping away the lower-court ruling without conducting plenary review.

2. I’m including cases in which the relevant party is a federal officer in their official capacity—and cases in which a federal officer is a party in their personal capacity but the suit relates to their scope-of-employment conduct.

3. As the chart reflects, we focused in particular on the period since OT1988 (after the most recent significant changes to the Court’s appellate jurisdiction went into effect). Before then, not only was the Court hearing far more cases overall (where it would’ve been wholly impracticable for more than a plurality to involve the federal government), but much of the Court’s appellate jurisdiction was mandatory—including in a large number of cases in which the federal government would either never, or seldom, have been a party. We’re working on compiling that data anyway, but I’m confident that these structural differences in the Court’s jurisdiction necessarily limit the time period in which a majority of federal-party cases even could have happened to the post-1988 Court.

4. The Court receives numerous briefs from governmental and non-governmental “friends of the Court” (amici curiae) in its merits cases. But with very rare exceptions, the only amicus to whom it grants leave to participate in oral argument is the federal government.

5. I’m generalizing a bit; there are some cases in which the federal government is a party on the same side as private parties or states—in which the argument will be divided among them. But the overall pattern still holds.

6. Even the comprehensive Stern & Gressman “Supreme Court Practice” treatise only mentions the peculiar seating arrangement—without identifying its origins.