For decades, the U.S. solicitor general has traditionally played a reactive role in the certiorari process, stepping in only when the Supreme Court requested the federal government’s views through a “call for the views of the solicitor general,” known as CVSG. This process has been institutionalized since the 1960s and, although not common, occurs approximately 10 to 11 times each term. However, the filing of unsolicited amicus briefs by the solicitor general at the certiorari stage has become more frequent, especially during the second Trump administration. This shift raises questions about the potential dilution of the signaling value of these briefs and has led to discussions on the appropriate circumstances for such proactive involvement by the federal government.
The historical rarity of uninvited cert-stage amicus curiae briefs reflected a norm that the solicitor general should only intervene in cases of profound federal interest. Factors such as institutional limits have traditionally curbed this practice, as highlighted by Patricia Millett in her 2009 explanation of the pressures faced by the solicitor general’s office.
Historically, from the onset of the Clinton administration through to the Biden administration, there have been only 17 identified instances of uninvited briefs, marking their relative rarity as an institutional practice. Recent trends under the Trump administration have seen an uptick in such filings, primarily focusing on critical issues like the Second Amendment, religious liberty, and federal preemption of climate-related suits.
Success with these filings is measured not by judgments but by the grant rate of cases deemed as warranting review. The solicitor general’s briefs have been influential in the Supreme Court’s decision to review cases, boasting a success rate of 76.19% across resolved cases, significantly higher than the typical grant rate for paid petitions. This rate maintains strong alignment with recommendations from CVSG briefs, typically achieving an approximate 80% agreement rate, as noted in a substack analysis.
Notably, repeated themes in uninvited briefs cover familiar jurisprudential domains such as Bivens remedies and antitrust, signaling areas of persistent federal interest. Under various administrations, increasing use of such briefs reflects shifting priorities, assessing and influencing doctrinal developments on pressing legal issues.
While concerns over potential signal dilution persist, the substance of arguments presented in such briefs largely determines their impact. As the office of the solicitor general continues to navigate these institutional roles against potential resource constraints, it remains to be seen whether this recalibrated engagement will remain a constant feature across future administrations. For a detailed exploration of this shift, the full article is available on SCOTUSblog.