By Richard L. Pacelle
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Extra resources for Between Law & Politics: The Solicitor General and the Structuring of Race, Gender, and Reproductive Rights Litigation (Joseph V. Hughes, Jr., and Holly ... Presidency and Leadership Studies, No. 14)
As Wallace said, “if we tell them to take the case and they do, we have an interest. ”54 Implications. The diﬀerent forms of participation present a dilemma for the OSG, particularly in periods of divided government. The solicitor general might wish to act on his own preferences or those of the president, but is constrained. If Congress, the president, and the Court have diﬀerent priorities, the solicitor general could be in a delicate position. In the same term in the same issue area, the solicitor general may be invited to provide a legal argument, may be obligated to defend Congressional policies, and may be ﬁling an amicus brief to further the president’s agenda.
Knowing that justices normally take cases to reverse them is a hint that the lower court decision may be in jeopardy. These cases can threaten the solicitor general’s attempts to construct a coherent litigation strategy and may interfere with the government’s legal policy. The solicitor general can, and often will, oppose the appellants’ brief, asking the Court to refuse to accept the case. The government’s vulnerability is limited because the Court can only accept a small fraction of the petitions on its docket.
As a gatekeeper, the division can inﬂuence the priorities of the solicitor general. The agency is pulled by political and legal forces. The agency normally tries to establish and maintain a consistent position. If the president can aﬀect the agencies through political appointments and issue priorities, he can exert indirect inﬂuence on the solicitor general’s litigation priorities. 24 Careerists in the appellate sections and legal staﬀ in the agencies provide an institutional memory. Their long-term perspective insulates them from the winds of political change.
Between Law & Politics: The Solicitor General and the Structuring of Race, Gender, and Reproductive Rights Litigation (Joseph V. Hughes, Jr., and Holly ... Presidency and Leadership Studies, No. 14) by Richard L. Pacelle