WEBVTT - When Trump’s Solicitor General Talks, Justices Listen

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you inside an analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

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<v Speaker 1>and on Bloomberg dot com slash podcast. The Solicitor General

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<v Speaker 1>is referred to as the tenth Justice because of the

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<v Speaker 1>special role as the federal government's top lawyer at the U. S.

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<v Speaker 1>Supreme Court. That informal title maybe truer today than it's

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<v Speaker 1>ever been. Joining me is Kimberly Strawbridge Robinson, Bloomberg Law Editor. So, Kimberly,

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<v Speaker 1>no Francisco is the current Solicitor General. Start by explaining

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<v Speaker 1>a little about the role of the s G, especially

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<v Speaker 1>with regard to what's called c v s g S

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<v Speaker 1>short for Call for the Views of the Solicitor General. Right. Well,

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<v Speaker 1>as you mentioned Noel Francisco is the current Solicitor General,

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<v Speaker 1>that he's a former partner at the big law firm

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<v Speaker 1>of Jones Day, where a lot of Trump administration officials

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<v Speaker 1>have come from. And as you said, they're really the

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<v Speaker 1>administration's top lawyer at the U. S. Supreme Court, and

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<v Speaker 1>they oversee other litigation um as it's working its way

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<v Speaker 1>through the federal courts, and it has the relationship of

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<v Speaker 1>trust with the Supreme Court. And one of the ways

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<v Speaker 1>that we see this relationship play out is through these

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<v Speaker 1>cvs g s or calls for the views of the

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<v Speaker 1>Solicitor General. And what will happen in these cases if

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<v Speaker 1>the justices will ask the Solicitor General and his office

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<v Speaker 1>to weigh in on whether or not a court should

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<v Speaker 1>take up a case or whether or not it should

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<v Speaker 1>let it pass, and we see some remarkable agreement between

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<v Speaker 1>the justices and the solicitor generals. This term um when

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<v Speaker 1>it comes to those suggestions, you write that the office

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<v Speaker 1>of the Solicitor General has an almost perfect record this

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<v Speaker 1>term when it comes to these recommendations. Tell us about

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<v Speaker 1>the numbers and how that compares to the prior administration. Right, Well,

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<v Speaker 1>we're seeing an increase in these cvs g s, meaning

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<v Speaker 1>presumably that the court is relying or on the office

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<v Speaker 1>than it has in previous decades. And so now we

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<v Speaker 1>get cbs g's about two dozen times a term. A

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<v Speaker 1>lot of them stack up at the end of the term,

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<v Speaker 1>so about half of the Solicitor General's recommendations are still outstanding.

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<v Speaker 1>But in ten of eleven recommendations that the Office has

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<v Speaker 1>made so far this term, the Supreme Court has agreed.

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<v Speaker 1>We'll see as the Court approaches the end of this

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<v Speaker 1>term if that will stick. But overall, in the three

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<v Speaker 1>years that the administration has been replying to these cvs g's,

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<v Speaker 1>the administration has been doing very well. It's somewhere in

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<v Speaker 1>nine where it's historically it's been closer to and under

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<v Speaker 1>Obama it reaches as low as sixty five percent. If

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<v Speaker 1>you get sixty of a windstrink in the Supreme Court,

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<v Speaker 1>that's a pretty good day. But as I mentioned, it

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<v Speaker 1>has been higher in other administrations that it was under Obama.

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<v Speaker 1>In general, has the s G been recommending taking cases

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<v Speaker 1>with controversial issues or turning them away? Mostly turning them away,

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<v Speaker 1>And that's historically the practice of the Solicitor General is

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<v Speaker 1>to be more risk averse and not suggests that the

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<v Speaker 1>Supreme Court spend a lot of its time on certain cases.

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<v Speaker 1>I would note one particular CBSG that the Court is

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<v Speaker 1>still considering has to do with Sudan and terrorism and

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<v Speaker 1>what damages individuals can get, and that will be an

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<v Speaker 1>interesting one that the Solicitor General has recommended that the

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<v Speaker 1>Justices do take up during their next term. So why

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<v Speaker 1>this deference to the Solicitor General with this particular court. Well,

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<v Speaker 1>of course, all of this is happening through briefs at

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<v Speaker 1>the Court and no one's actually sitting down and really

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<v Speaker 1>having in conversations, So we just have to speculate. But

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<v Speaker 1>we have a some good idea that it may have

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<v Speaker 1>to do with the converging ideologies. Not only is the

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<v Speaker 1>Solicitor General's office getting more conservative, but so are the

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<v Speaker 1>Justices and that may indicate that, you know, they see

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<v Speaker 1>eye to eye with the Solicitor General on what kinds

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<v Speaker 1>of cases and what kinds of issues the Supreme Court

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<v Speaker 1>be tackling right now. Is that winning streak of the

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<v Speaker 1>Solicitor General any indication of how the Court will rule

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<v Speaker 1>in those cases? Well, it can and it can't be. Um,

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<v Speaker 1>you know, looking at these CDs g's is just one

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<v Speaker 1>measure of how much the Justices are relying on the

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<v Speaker 1>Solicitor General and the Trump administration. But even by other measures,

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<v Speaker 1>we see the Trump administration doing very well. And so

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<v Speaker 1>I mentioned that the Obama administration didn't do very well

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<v Speaker 1>in CBS g's but they didn't actually do very well

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<v Speaker 1>in straight wins and losses, although they want a lot

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<v Speaker 1>of high profile cases. But the Trump administration is doing

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<v Speaker 1>much better. Indeed, already for this term, they've got a

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<v Speaker 1>seventy win streak, and that's that's pretty good at the

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<v Speaker 1>U s. Supreme Court, I would say so. Now, the

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<v Speaker 1>Solicitor General has also tried to circumvent the rules a

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<v Speaker 1>little and get the Supreme Court to fast track several cases.

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<v Speaker 1>How successful has that been, Well, that's been more of

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<v Speaker 1>a mixed bag, and that seems somewhat contrary to what

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<v Speaker 1>we've been talking about with the Justices really relying on

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<v Speaker 1>the Solicitor General's office. But one court watcher that I

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<v Speaker 1>talked to pointed out that the Trump administration is doing

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<v Speaker 1>things a little bit more unusually than other administrations. And

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<v Speaker 1>so while they've been turned away a lot by the

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<v Speaker 1>Supreme Court in these requests to kind of skip over

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<v Speaker 1>the lower courts, they've also had a lot more granted

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<v Speaker 1>in their favor. You say that the Justices are going

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<v Speaker 1>to be considering more of the recommendations before the term

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<v Speaker 1>wraps up. Tell us about a yet unscheduled mop up conference.

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<v Speaker 1>Because I love that idea. A mop up conference at

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<v Speaker 1>the Supreme Court. Right, Well, if you were to look

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<v Speaker 1>at the Supreme Court schedule, you would think that there

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<v Speaker 1>are only two more days where the Court is going

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<v Speaker 1>to hand down opinions and only one more day where

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<v Speaker 1>they're going to meet in a private conference and chat

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<v Speaker 1>about what cases they should take up for next term.

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<v Speaker 1>But actually it's a little bit more secretive than that.

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<v Speaker 1>The court watchers know that the Court typically adds an

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<v Speaker 1>extra conference day right at the very end of their

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<v Speaker 1>term so that they can clean up any outstanding cases

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<v Speaker 1>that they want to get going before they take a

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<v Speaker 1>break for the summertime and get briefing off and rolling

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<v Speaker 1>so they're ready for the next term when it comes

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<v Speaker 1>around in October. The Solicitor of General does he argue

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<v Speaker 1>all the cases that the Supreme Court hears that the

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<v Speaker 1>administration has a part in. Well. The Solicitor General's office

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<v Speaker 1>is made up of a number of career attorneys as

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<v Speaker 1>well as some political appointees, and individuals from that office

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<v Speaker 1>will argue not only in cases where the administration is

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<v Speaker 1>a party, but also where they're acting as a friend

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<v Speaker 1>of the court. That is where they'll pick one party

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<v Speaker 1>and they'll argue on their behalf in support of their

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<v Speaker 1>side of the case. And so the Solicitor General usually

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<v Speaker 1>argues some of the most important and consequential cases, but

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<v Speaker 1>his office is involved in many, many cases at the court.

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<v Speaker 1>I think this term it's well over thirty cases that

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<v Speaker 1>have already been decided that his office has participated in

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<v Speaker 1>and only ted where they weren't involved at all. And

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<v Speaker 1>we're coming up to the end of the term, so

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<v Speaker 1>we're gonna be hearing about a lot of the controversial

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<v Speaker 1>cases as well that this listener General has been involved in.

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<v Speaker 1>Thanks so much, Kimberly, very interesting article. That's Kimberly Strawbridge Robinson,

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<v Speaker 1>Bloomberg Law Editor. Thanks for listening to the Bloomberg Law Podcast.

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<v Speaker 1>You can subscribe and listen to the show on Apple Podcasts,

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<v Speaker 1>SoundCloud and on Bloomberg dot com slash podcast. I'm June Brosso.

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<v Speaker 1>This is Bloomberg