Attitudes may matter more than originalists would like to admit, but we shouldn't discount the possibility of principled judging.
Some time ago, I commented on the Supreme Court’s increasing doubts about the Solicitor General’s good faith and candor. More in this vein comes from a party brief in a pending certiorari petition. The Court CVSG’s the case (i.e., asked for the view of the SG whether cert should be granted). The SG opposed. From the brief:
The Solicitor General’s position is in keeping with a pattern of apparent reluctance to support review even when substantial factors warranting certiorari are present. The Solicitor General recommended denial in 21 of the 22 invitation briefs filed between August 26, 2011, and November 30, 2012. The Court has granted review in many of those cases; four have already been argued this Term, and another is awaiting argument. Ryan v. Gonzales (10-930); Decker v. Northwest Environmental Def. Ctr. (11-338, 11-347); Los Angeles Cnty. Flood Control Dist. v. NRDC (11-460); Vance v. Ball State Univ. (11-556); Bowman v. Monsanto Co. (11-796). Yet another argued case, Kirtsaeng v. John Wiley & Sons (11-697), presents an issue on which the Court granted certiorari in 2010 over the Solicitor General’s contrary recommendation, but the Court divided evenly in the 2010 case presenting that issue.
Zing. Having looked at CVSG filings over the years, and having read a very fine law review article (link no longer available) on the empirics, I assure you that these numbers are entirely unprecedented. Small wonder: it cannot possibly be the case that every case the justices deem worthy of at least a careful look is a dud. The “no cert ever” posture requires some very fancy footwork.
The case at hand, American Trucking Ass’n v. Los Angeles, 11-798, is a fine illustration. It arises over the preemptive force of the FAAAA (not a typo: you’re looking at the Federal Aviation Administration Authorization Act.) As the petitioners (represented by the excellent Roy Englert, Alan Untereiner, and Leif Overvold of Robbins Russell) note, the SG’s opposition acknowledges that the Ninth Circuit, in the course of creating a broad “market participant” exemption to federal preemption, got it wrong; produced a circuit split; and badly mangled a Supreme Court precedent. Also, the SG acknowledges, the case involves a recurring question under multiple preemption regimes. Still, no cert. Why should the U.S. government defend its own statutes? American Trucking Ass’n was relisted earlier this week; my hunch is that the Court will grant.
Since Roy and Alan compiled their list, there’s at least one additional case in which the Court granted cert despite the SG’s recommendation to deny. That would be City of Arlington v. FCC . It confronts an urgent Administrative law question—actually a barely suppressed constitutional question–that the Court has repeatedly ducked by means of none-too-persuasive maneuvers: do courts owe deference (Chevron deference, as it’s called) to an agency’s construction of its own jurisdiction? The answer has to be “no”; and if it is, City of Arlington could be the biggest AdLaw deal in decades. I’ll have more at the time of oral argument.