No invitation necessary: when the solicitor general weighs in unsolicited

For decades, the U.S. solicitor general’s most familiar role at the certiorari stage has been reactive rather than proactive: When the Supreme Court wants the federal government’s views on a certiorari petition in a case in which the United States is not a party, it usually has to ask for them – through a call for the views of the solicitor general, or CVSG. That process began in 1957 and became institutionalized in the 1960s. CVSGs are unusual but not rare, happening around 10 or 11 times every term, and they serve as powerful signals that a petition has attracted the court’s serious attention.

Alongside that familiar practice has existed a second, rarer one: the filing of uninvited amicus briefs by the solicitor general at the certiorari stage. Historically, such briefs were exceptional. But during the second Trump administration, they have become noticeably more frequent. That development raises an obvious institutional question: what happens when a practice that has long been extraordinary becomes more routine?

Some lawyers in the office of the solicitor general have worried that increased filings would risk diluting the signaling value of uninvited amicus briefs. But the court’s response so far suggests a more modest conclusion: success still turns on whether the solicitor general has made a persuasive argument, not merely on the unusual nature of the filing.

The historical baseline – and why it existed

The rarity of uninvited cert-stage amicus curiae (“friend of the court”) briefs was not accidental. It reflected a deeply embedded norm about the solicitor general’s institutional role. As Patricia Millett – writing in 2009 from her experience as an assistant to the solicitor general – explained, unsolicited cert-stage participation has long been considered appropriate only in cases involving “questions of profound and enduring institutional interest to the federal government,” where the United States had a “distinct message to bring to the certiorari debate.” So although the United States, alone among potential amici, has under the Supreme Court’s rules not needed party consent or leave of court, the solicitor general’s office applied a “weighty presumption against such filings” and would file only if the case for doing so was “extraordinarily compelling.” (The first court rules I have been able to locate that mention amicus practice, from 1939, also exempted the United States from the consent or leave requirement.)

Millett also identified a secondary reason for restraint: capacity. She warned that “appearing as amicus at the certiorari stage more frequently would be unworkable,” explaining that if the solicitor general’s office were “to get into the habit of routinely filing uninvited amicus briefs, the Office—with its already spartan staffing levels—would likely be overwhelmed by the number of requests for such support.”

Rarity, in other words, served a dual function. It preserved the credibility of the solicitor general’s voice with the court, as well as the solicitor general office’s resources.

How rare was “rare”?

From the beginning of the Clinton administration to the end of the Biden administration – a period of 32 years – I have been able to identify just 17 uninvited amicus briefs. (Readers should flag any I have missed – this piece will be updated accordingly.) Five during President Bill Clinton’s two terms; seven during President George W. Bush’s; two during President Barack Obama’s; two during President Donald Trump’s first term; and one during President Joe Biden’s single term (which was filed at the “motion for stay” stage rather than certiorari stage, but the posture is similar enough to warrant inclusion).

The early years of the George W. Bush administration marked a notable departure from that baseline. In a two-year period under Solicitor General Theodore Olson, the solicitor general’s office filed five uninvited cert-stage briefs in cases involving school vouchers, antitrust, and foreign relations. But beginning in 2003, the pace of such filings slowed dramatically, with just seven filings over the next 21 years.

That history makes the recent uptick all the more striking. In just over its first year, the solicitor general’s office during the second Trump administration has filed five uninvited cert-stage amicus briefs across a range of subject areas – including the Second Amendment, religious liberty, capital punishment, Bivens remedies, and federal preemption of climate-related suits against energy companies. In addition, although not technically at the petition stage, the solicitor general’s office has filed an amicus brief supporting Texas’s application for a stay, and in a separate redistricting case in California – where the government had intervened below – it filed an unsolicited brief as respondent supporting the applicants’ request for a stay.

All told, the current administration has filed roughly seven briefs in cases not on the court’s merits docket in which it had no obligation to participate. In absolute terms, the numbers remain small. But relative to historical practice, the increase is meaningful. A mechanism once used sparingly is now being deployed with some regularity.

Measuring success: grants, not judgments

The natural question is how successful such filings have been. Answering that question requires choosing the right metric. At the certiorari (or stay) stage, the solicitor general’s principal objective is not to prevail on the merits, but to persuade the court that a case warrants review – or that interim relief is appropriate. Whether the court ultimately agrees with the government’s legal position after full briefing and argument is a separate matter, shaped by doctrinal, factual, and institutional considerations that extend far beyond the cert stage.

Viewed through that lens, the government’s record has been impressive. Aside from three early Clinton-era briefs (whose lack of success may have reinforced the idea that frequent filings would be counterproductive), one Biden-era stay opposition, and a recent Trump-second-term stay brief (I’ve excluded from my count one Bush-era brief in a case where the court lacked a quorum to act), the court has acted consistently with the solicitor general’s recommendation. Specifically, the solicitor general has succeeded in 16 of 21 resolved cases (two petitions are still pending). That is an agreement rate of 76.19%.

The grant rate in these cases far exceeds the baseline rate for paid petitions and compares favorably even to cases that attract significant amicus attention from private parties. But it is actually slightly lower than the court’s agreement rate with recommended dispositions in CVSG briefs, which hover around 80%.

That high agreement rate does not mean the court is deferring reflexively to the solicitor general, at least on the merits. In several prominent cases – including Trump v. Vance, concerning the standard for the issuance of a state criminal subpoena to a sitting president – the court granted review after an uninvited brief and then rejected the government’s position on the merits. But those cases underscore, rather than undermine, the point: the court appears willing to take cases flagged by the solicitor general as cert-worthy even when it is unpersuaded by the government’s ultimate legal argument on the merits. That reflects respect for the solicitor general’s judgment about which cases merit the court’s attention, not blind acceptance of the government’s views.

Busy periods and what they reveal

Looking across administrations, patterns in subject matter are at least as revealing as raw numbers. Certain subjects seem evergreen: Bivens and federal agent liability (four briefs); foreign affairs (three); antitrust (two); and Indian law (two). Those issues fit comfortably within the traditional framework Millett described, as they involve questions of great institutional importance where the United States had a “distinct message to bring to the certiorari debate.”

The three identifiable “busy periods” over the last thirty years – during the Clinton administration, during Solicitor General Olson’s tenure, and today – involved those recurring topics but also something more: issues of particular importance to the sitting administration or solicitor general. Clinton’s first solicitor general, Drew Days, filed two uninvited briefs involving affirmative action programs; Olson filed one involving school choice. As noted above, the current administration has filed uninvited briefs involving Second Amendment rights, federal preemption of climate-related suits against energy companies, and religious liberty.

Each represent issues of importance to the sitting administration that were apparently at doctrinal inflection points – moments when the solicitor general concluded the court’s intervention was necessary, even without an invitation.

Dilution versus discipline

As uninvited cert-stage briefs become more common, each individual filing may carry less institutional weight. A justice encountering such a brief today may reasonably wonder whether it signals a truly exceptional case or merely reflects a more assertive cert-stage posture by the executive branch. There is also the question of sustainability. Concerns about staffing levels have not disappeared, and the solicitor general’s office remains responsible for an enormous docket as a party, as an invited cert-stage amicus, and as an amicus at the merits stage.

At the same time, the court’s response suggests that substance still controls. The recent surge in filings – like the one during Olson’s tenure – has been overwhelmingly successful so far. By contrast, the Biden administration’s sole uninvited submission (a rare opposition to a stay request) was unsuccessful. Thus, dilution seems to be less of a factor than whether a particular submission has made a persuasive case to the court. It may be that ideological alignment plays some role in persuasion. But given the small numbers at issue here it is difficult to draw firm statistical conclusions; studying the success rates of the far more common CVSG briefs under different administrations would likely be a better indicator of the significance of that factor.

Conclusion

The increased use of uninvited cert-stage amicus briefs reflects a meaningful shift in Supreme Court practice. A tool once reserved for the most extraordinary circumstances is now being used more frequently and across a wider range of issues. That change carries risks – for the signal value of such filings and for the institutional capacity of the solicitor general’s office.

Whether this recalibrated practice will endure across administrations remains to be seen. For now, the court continues to grant review. It would appear that the court does so not simply because the solicitor general has spoken, however, but – as proven by its careful consideration of the merits – because the solicitor general has made a compelling case for why the court should act.