Profs state their case on high court influence

Each time a U.S. Supreme Court justice resigns, national attention focuses on his or her replacement. The selection can alter the power balance on the court and impact the nation’s most crucial legal issues.

For the past seven years, political science Associate Professors Rebecca Deen and Joseph Ignagni have explored the nuances of the relationship between the president and the Supreme Court. They have examined the extent to which the executive branch is successful before the nine justices when it states its opinion about which side should win a case.

The U.S. government is not a party in these cases; it isn’t named in the title, such as U.S. vs. Smith. Instead, these are cases where the Office of the Solicitor General, a component of the executive branch’s Department of Justice, files a friend of the court brief.

Earlier research indicated that the solicitor general, the president’s spokesman before the court, is very successful. About 74 percent of the briefs the office files argue for the side that ultimately wins.

“What we’ve done is uncover some interesting trends that show that while the SG is certainly influential, there are times when the office is more successful than others,” Dr. Deen said. “Success varies by presidential administration, by the issue area involved and by ideology.”

In an article for the journal Judicature, Deen and Ignagni show that this trend of differing patterns of success extends to individual justices. Some justices are, at times, more or less inclined to rule as the solicitor general wishes.

“Our clearest finding is that the SG is most likely to be successful—to argue a position with which the justice will agree—when the ideology of the justice matches that of the SG,” Dr. Ignagni said.

For example, up to the year 2000, Clarence Thomas, a conservative, had supported conservative briefs by the solicitor general 85 percent of the time. But when the position argued by the solicitor general was liberal, Thomas’ support dropped to 46 percent.

“That’s pretty significant when you think of the SG winning 74 percent of the time, on average,” Deen said.




— Mark Permenter