By William Hornbeck, ACLR Featured Blogger

           The docket line is familiar to most Supreme Court litigators: “Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED.” But for criminal defendants seeking Supreme Court review of their state convictions, seeing that docket line can cause either mild annoyance or serious concern. To preserve the proper balance between state and federal law enforcement, the Solicitor General should stop appearing in oral arguments between criminal defendants and the states.

            In early March of 2013, Genovevo Salinas was in as good of a position as a prisoner in Texas could be. The Supreme Court had agreed to hear review of his conviction on direct appeal, a rare enough feat for a prisoner under sentence of a state court. But now Salinas had two factors tipping his way: he was the petitioner, which statistically speaking gave him a 66% chance of winning before the Supreme Court,[1] and he was represented by Jeff Fisher, one of the premier Supreme Court litigators in the country. Fisher’s opening merits brief had laid out why the police’s interrogation of Salinas “compelled” him to give self-incriminating testimony in violation of Miranda v. Arizona.[2] Texas’ merits brief, due in late March, would likely repeat the arguments that Texas had made below and at the cert stage. While these arguments had convinced a federal appeals court, they would now be judged by the Supreme Court.

            But a week after Texas submitted its brief, the Solicitor General of the United States submitted his own brief as amicus curiae. The Solicitor General’s amicus brief raised an entirely new issue that neither party had briefed and that had not been raised below: whether Salinas had expressly invoked Miranda in response to the police’s questioning.[3] The Solicitor General suggested that Salinas had not, and then filed for leave to participate in the oral argument and for divided argument. The Supreme Court granted this request in mid-April, two weeks after it was submitted and less than a week before oral argument in the case.

            At oral argument, Jeff Fisher was given 30 minutes of time to argue for Salinas, Alan Curry (an assistant district attorney in Texas) was given 20 minutes of time to argue for Texas, and Ginger Anders (an assistant to the Solicitor General) was given 10 minutes of time to argue for the United States as amicus curiae in support of Texas. Fisher spent most of his time responding to the Solicitor General’s arguments, and most of the questions directed at him were based on the Solicitor General’s brief.[4] When the Supreme Court released its opinion, Salinas lost 5-4: three Justices agreed with the Solicitor General’s position, two Justices agreed with Texas’ position, and the dissent agreed with Salinas’ position.[5]

            Salinas illustrates just how drastically the Solicitor General’s involvement can alter the landscape of a case. Because of the intervention of appellate lawyers responsible for advocating on behalf of the federal government, a case captioned [criminal defendant] v. [state] was resolved in favor of the state. It is hardly surprising that a Supreme Court filled with former Solicitors General[6] and Department of Justice attorneys[7]would trust the Solicitor General to guide them, and would grant the Solicitor General argument time that they would never give any other third party intervenor. [8] But this does not explain why the Solicitor General should be involved in these cases. Obviously the federal government has an interest in the Supreme Court construing the Constitution in a way that allows flexibility for federal law enforcement. But the same is true of every other state in the Union, and the Supreme Court would not grant argument time to Wyoming to protect its interests in a dispute between Georgia and a citizen of Georgia. Our constitutional structure calls for most law enforcement to be done at the state and local level: the state and local governments largely responsible for enforcing the criminal law in this country should also be responsible for defending challenges to the convictions they secured.

            Without the Solicitor General’s involvement in oral argument in cases like this, it would be difficult for the Supreme Court to justify ruling on the basis provided by the Solicitor General. The Supreme Court has a strong aversion to deciding cases on grounds that were not raised below and that only showed up in an amicus brief, even the Solicitor General’s “gray brief.”[9] But the Solicitor General’s involvement in oral argument not only allows the amicus brief to come to life and answer questions from the Justices (so to speak), it also shapes the arguments of the other parties, who now have to respond to arguments that were not before the lower court and that the parties did not even consider until two weeks before oral argument. The potential for new arguments to arise is an inevitable feature of a system with virtually unlimited amicus briefing. But there is a difference between an argument motivating the Justices (it would be impossible to regulate what motivates the Justices to make their decisions) and an argument providing a legally sufficient foundation for the Supreme Court’s decision.

            It might be objected that there is nothing wrong with a system where many sophisticated legal perspectives are presented. After all, if an argument would convince the Supreme Court, why shouldn’t it be out there in a form where the Supreme Court can properly take notice of it? The response to this objection is that whether an argument helps the defendant or the plaintiff, the same principles of appellate advocacy that govern the actual parties to the case (e.g. waiver of arguments, estoppel) ought to govern oral advocates in the case. If the Solicitor General wants to be treated like a party (through divided argument), it shouldn’t be able to get the benefits of being a party without being subject to any of the rules.

            The Solicitor General’s ubiquitous involvement in the Supreme Court’s criminal docket has become a fact of life for the Supreme Court bar. But it is time to reconsider whether the current practice is the best one for promoting a properly adversarial system, especially given the federalism concerns that should place the primary burden for defending state convictions on state attorneys general’s offices. The Solicitor General should stop involving itself in oral arguments between states and criminal defendants.