The Office of the Solicitor General (OSG) presents oral arguments on behalf of the federal government in almost all cases before the Supreme Court. There are a few outliers. The Attorney General on occasion has argued one case during his or her tenure. And in rare cases, an attorney from an agency like the Federal Trade Commission will argue before the Court.
The Solicitor General (SG), who is Senate-confirmed, leads the Office. When the SG position is vacant, there will be an Acting SG. Below the SG is the Principal Deputy SG (PDSG), also known as the “political” deputy. Traditionally, OSG has traditionally had four Deputy Solicitor Generals (DSGs), including the PDSG. Currently there are five total deputies. The rest of the office includes Assistants to the Solicitor General (ASGs).
During the October Term 2023 (OT 2023), OSG argued a total of 53 cases. SG Elizabeth Prelogar argued ten cases and PDSG Brian Fletcher argued three cases. Four DSGs argued cases: Malcolm Stewart (3), Edwin Kneedler (2), Eric Feigin (2), and Curtis Gannon (2). The remaining 31 OSG cases were argued by the 15 ASGs.
How does this division of oral arguments compare to past terms? Since OT 2021, OSG has argued nearly 1,300 cases. I compiled this total by cross-referencing arguments in Oyez and in the WestLaw Supreme Court Oral Argument database. Even as the size of the Court’s merits docket has shrunk, OSG continues to argue roughly the same number of cases. The high was 63 cases in OT 2001 and the low was 47 cases in OT 2017, averaging to about 55 per term. Still, because this number fluctuates year-by-year, it is more useful to measure percentages: what percentages of the OSG cases are argued by the SG, the PDSG, DSGs, and ASGs.
This table breaks down the percentages:
Term SG SG PDSG DSGs ASGs OT 01 Olson 12.70% 7.94% 15.87% 63.49% OT 02 Olson 15.25% 8.47% 15.25% 61.02% OT 03 Olson 15.00% 11.67% 18.33% 55.00% OT 04 Clement (Acting) 16.00% 5.08% 20.00% 64.00% OT 05 Clement 13.56% 0 20.34% 61.02% OT 06 Clement 15.38% 5.77% 21.15% 57.69% OT 07 Clement 12.73% 9.09% 20.00% 58.18% OT 08 Garre 8.77% 3.51% 22.81% 63.16% OT 09 Kagan 9.26% 9.26% 22.22% 59.26% OT 10 Katyal (Acting) 10.53% 7.02% 21.05% 61.40% OT 11 Verrilli 14.04% 5.26% 19.30% 61.40% OT 12 Verrilli 10.94% 7.81% 18.75% 62.50% OT 13 Verrilli 12.50% 7.14% 19.64% 60.71% OT 14 Verrilli 12.28% 5.26% 17.54% 64.91% OT 15 Verrilli 10.34% 5.17% 17.24% 67.24% OT 16 Gershengorn (Acting) 6.00% 4.00% 18.00% 72.00% OT 17 Francisco 8.51% 10.64% 19.15% 61.70% OT 18 Francisco 9.62% 9.62% 15.38% 65.38% OT 19 Francisco 14.00% 12.00% 20.00% 54.00% OT 20 Wall (Acting) 10.00% 6.00% 22.00% 62.00% OT 21 Prelogar (Acting) 9.62% 5.77% 23.08% 59.62% OT 22 Prelogar 15.38% 5.77% 25.00% 53.85% OT 23 Prelogar 18.87% 5.66% 16.98% 58.49%
In OT 2023, SG Prelogar argued 18.87% of OSG cases, the highest percentage in at least a quarter century. Indeed, Prelogar’s 10 arguments in OT 2023 was the highest raw total since SG Olson argued 9 cases in OT 2002 and OT 2003. But in those two terms, OSG had 59 and 60 total arguments, respectively. Olson’s totals were 15.25% and 15%, respectively. By contrast, in OT 2023, OSG had only 53 arguments.
If Prelogar had so many arguments, who was left out? PDSG Brian Fletcher argued three cases, only 5.6% of the OSG cases. If we exclude terms in which there was no confirmed SG, and the Principal Deputy SG served as Acting SG, Fletcher’s total is among the lowest in a quarter century. Moreover, the other four Deputy SGs argued 16.98% of the cases.
Again, historically there were three deputies other than the principal, but during the Trump administration, that number was increased to four. In a quarter century, this was the first term in which the SG argued a higher percentage of cases than all of the Deputy SGs combined. To state the point plainly, SG Prelogar single-handedly argued more cases than DSGs Stewart, Kneedler, Feigin, and Gannon, combined. If we exclude Prelogar’s tenure, DSGs argued about 7% more cases than the SG. But during OT 2023, the SG out-argued the DSGs.
This graph distills how SG Prelogar argued more cases than her predecessors, how the Deputy SGs under SG Prelogar argued fewer cases than their predecessors, and how the Principal Deputy SG is near the bottom of utilization rates when there is a confirmed SG.
There’s more. During OT 2023, Assistant SGs argued 58.49% of the OSG cases: fourteen ASGs each argued two cases, and ASG Charles Luke McCloud argued only one case. That is one of the lowest totals in a quarter century. The lowest total for ASG arguments came in OT 2022, where ASGs argued 53.85% of the cases. Even as SG Prelogar argues more cases, the Assistant SGs are arguing fewer cases. During SG Francisco’s term, many ASG’s had 3 arguments in a term. During OT 2022, only one ASG had 3 arguments. During OT 2023, zero ASGs had 3 arguments.
During OT 2023, Prelogar argued these ten cases:
October Sitting:
Consumer Financial Protection Bureau v. Community Financial Services Association of America (2023)
November Sitting:
United States v. Rahimi (2023) Moore v. United States (2023)
January Sitting:
Relentless, Inc. v. Department of Commerce (2023) Loper Bright Enterprises v. Raimondo (2023)
February Sitting:
Moody v. NetChoice, LLC (2023) NetChoice, LLC v. Paxton (2023)
March Sitting:
Food and Drug Administration v. Alliance for Hippocratic Medicine (2023)
April Sitting:
Moyle v. United States (2023) Fischer v. United States (2023)
It could be argued that pairs of cases should only be counted as one. And you could pair Relentless and Loper Bright, and the two NetChoice cases. But all of my counts are premised on the actual number of arguments. I did not consider whether two cases were related. Olson, Clement, and the rest all had the opportunities to argue paired cases. In private practice, a lawyer who argues companion cases still gets two arguments to her credit. Presumably the SG will not count two cases that she argued just as just one in the future. If SG Prelogar decided to argue both Chevron cases and both NetChoice cases, to preserve parity, she could have dropped one or two of the cases from the March and April sittings. Any of her deputies could have argued AFHM, Moyle, or Fischer.
Lawyers in OSG are routinely headhunted to join private practice. One of the key incentives to work for a government salary is presenting arguments before the Supreme Court. If those arguments are not evenly doled out, it stands to reason that recruiting, morale, and retention will suffer.
The post The Division of Oral Arguments in the Office of Solicitor General (OT 2001-OT 2023) appeared first on Reason.com.
