In this installment of The Legal Pulse‘s Five Questions for series, we chat with Latham & Watkins LLP partner Gregory G. Garre, who served as the 44th Solicitor General of the United States from 2008 to 2009, and before that as Principal Deputy Solicitor General from 2005 to 2008.
The Legal Pulse: What impressions do you have of fellow former Solicitor General Elena Kagan’s first term on the Court? How much do you think her work as Solicitor General impact her decision-making?
Gregory Garre: She hit the ground running—in full stride. The nation has been fortunate in that all of the recent additions to the Court—nearly half a Court in just five years—have shown a remarkable capacity to adapt to the Court’s staggering workload and challenges. Justice Kagan did just that, while managing to maintain her sense of humor (even once joking from the Bench about the scintillating nature of the opinions she was assigned as junior Justice). She showed herself to be an engaging questioner at oral argument, yet on average asked the fewest questions at oral argument apart from Justice Thomas. And she was in the top half of efficiency in terms of the length of time she took to produce her assigned opinions for the Court. Her tenure as SG almost certainly helped with her transition to the Court. The SG has a unique perspective on the Court and its docket and is responsible for managing a workload almost as intense as the Court’s. As for her “decision-making,” I suspect that her tenure as SG was less helpful. The SG ultimately is an advocate for his or her client. The Justices have to decide the most difficult legal issues facing the country based on what the law is, not as an advocate for any client. So in that respect, Justice Kagan assumed a new role.
The Legal Pulse: In a number of cases during the October 2010 term, including Costco Wholesale, Janus Capital Group, and PLIVA/Actavis Elizabeth, the Court granted review over the objection of the Solicitor General after inviting the office to file as amicus. How common is this situation and what does it reflect regarding the dynamic between the Court and the Solicitor General’s office?
Mr. Garre: Every SG quickly learns that, while the Court may ask for his or her views, this does not mean that the Court will follow them. On the whole, the Court follows the SG’s recommendation on whether to grant or deny certiorari in the vast majority of the cases in which the Court calls for the SG’s views. And if anything, the Court seems to have been calling for the views of the SG in more cases over the past decade, giving the SG a greater degree of input into the Court’s docket. PLIVA, Inc. v. Mensing is noteworthy, though, in that the Court has previously tended to follow the SG’s views in preemption cases. And the SG’s office must feel like it can’t get it right on drug act preemption, since it supported a finding of preemption in Wyeth v. Levine (which the Court disagreed with) and supported a finding of no preemption in PLIVA (which the Court also disagreed with). Ultimately the dynamic between the Court and the SG’s office has been and remains strong. Indeed, the Court now has more alums from the office than at any other time in history—Chief Justice Roberts, Justice Alito, and now Justice Kagan. For that reason, among others, I suspect that the CVSG [Calls for the Views of the Solicitor General] practice will continue to thrive at the Court.
The Legal Pulse: A recent study finds a correlation between the reduced number of cases in which the Solicitor General’s office seeks Supreme Court review and the so-called shrinking Court docket. Is there merit in the suggestion that the Solicitor General’s reduced activity at the cert. stage has affected the size of the Court’s docket?
Mr. Garre: It’s an interesting study. The fact is that the SG’s office is filing fewer certiorari petitions today than it was back twenty or thirty years ago when the Court heard upwards of 100—or even 150—cases a term. And since most SG petitions are granted, this must have some impact on the Court’s docket. But I don’t think this reflects any conscious effort on the part of the SG to “shrink” the Court’s docket—or deprive it of more cases. My guess is that the reasons that the SG is filing fewer certiorari petitions today are interrelated with the reasons that the Court is taking fewer cases. For one thing, the SG inevitably takes its cues from the Court. As the Court has seemingly heightened its standards for determining what is cert-worthy, the SG no doubt has as well. Likewise, to the extent that there are simply fewer genuine circuit splits to resolve (as some have suggested), then that would impact the cases in which the SG would be likely to seek certiorari as well. In any event, I’m all for the Court taking more cases, but—at least in my current job—would vote in favor of the Court taking more petitions from private practitioners. Fortunately, there is no shortage of those.
The Legal Pulse: As a practitioner and Solicitor General, you have been on both the giving and receiving ends of private lawyers’ efforts to involve the Solicitor General’s office in their case, either at the petition or merits stages. What messages are most effective when lawyers are attempting to involve the federal government in its case?
Mr. Garre: You have to explain why it is in the government’s own interests to support your position. Many lawyers make the mistake of telling the SG why they should win—with their own client’s interests in mind. But like counsel for the parties themselves, the SG has to think of his or her own client’s interests—i.e., the government’s interests—in deciding whether to participate in a case and what position to take. The lawyers who make the most effective presentations to the SG almost always come armed with arguments as to why the government’s interests would be advanced by adopting a particular position. In addition, the SG’s office is uniquely interested in what the government has said in the past—and institutionally ingrained against changing positions absent a compelling reason or change in circumstance for doing so. Lawyers making a presentation to the SG should research what positions the government, and especially the SG’s office, have taken in prior cases, and make clear (when possible) that the government’s prior positions support coming in on the party’s side in the case at hand.
The Legal Pulse: Looking forward to the October 2011 term, which cases to which the Court has granted review do you see as being potentially significant for the free enterprise system?
Mr. Garre: Once again, intellectual property cases will occupy an important part of the Court’s docket. The Court has already taken several cases in that important area, and the Court is once again poised to consider the threshold question of the scope of patentability under 35 U.S.C. § 101—this time in the context of medical diagnostic/treatment methods. Mayo Collaborative Services v. Prometheus Laboratories. (Disclaimer: My law firm represents the respondent in this case.) On the last day that the Court met this June, the Court granted certiorari in an interesting and potentially significant case concerning the rights of property owners to bring pre-enforcement challenges to compliance orders issued by the EPA under the Clean Water Act. Sackett v. EPA. And while it falls more neatly into the category of free speech than free enterprise, FCC v. Fox—the so-called “fleeting expletives” case—will be must-see CourtTV. But all eyes will be on the Court’s response to the petitions for certiorari that almost certainly will begin arriving at the Court’s steps in the next few months (and likely continue over the course of the 2011 term) in cases involving challenges to the healthcare legislation.