The U.S. solicitor general's office has abandoned decades of institutional restraint by dramatically increasing unsolicited amicus briefs filed at the Supreme Court's certiorari stage during the second Trump administration, raising questions about the erosion of traditional legal norms.
For decades, the solicitor general's role at the certiorari stage has been primarily reactive. When the Supreme Court wants the federal government's views on a petition where the United States is not a party, it typically requests them through a "call for the views of the solicitor general" or CVSG. This process, which began in 1957 and became institutionalized in the 1960s, occurs around 10 or 11 times per term and serves as a powerful signal that a petition has attracted the court's serious attention.
Alongside this familiar practice existed a second, much rarer approach: the filing of uninvited amicus briefs by the solicitor general at the certiorari stage. Historically, such briefs were exceptional, reflecting deeply embedded norms about the solicitor general's institutional role.
According to Patricia Millett, writing in 2009 from her experience as an assistant to the solicitor general, unsolicited certiorari-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."
The solicitor general's office traditionally applied a "weighty presumption against such filings" and would file only if the case for doing so was "extraordinarily compelling." This restraint existed despite the fact that the United States, alone among potential amici, has not needed party consent or leave of court under the Supreme Court's rules since at least 1939.
This careful approach reflected the unique position of the solicitor general's office. Unlike other potential amici, the federal government's voice carries exceptional weight at the Supreme Court. The office has historically understood that with this privilege comes responsibility to use it sparingly, ensuring that when the solicitor general does speak without invitation, the court pays attention.
The second Trump administration has marked a notable departure from this tradition. Uninvited amicus briefs, once exceptional, have become noticeably more frequent. This shift raises an obvious institutional question: what happens when a practice that has long been extraordinary becomes more routine?
Some lawyers within the solicitor general's office have expressed concern that increased filings would risk diluting the signaling value of uninvited amicus briefs. When such briefs were rare, they carried implicit weight simply by virtue of their unusual nature. If they become commonplace, that inherent significance could be lost.
The concern extends beyond mere frequency to questions of institutional integrity and strategic effectiveness. The solicitor general's office has long prided itself on carefully calibrating its participation in Supreme Court cases. This restraint has helped maintain the office's credibility and ensured that when it does speak, the justices listen.
By filing unsolicited briefs more frequently, the current administration may be trading long-term institutional capital for short-term policy gains. Each additional filing potentially diminishes the special status that has made the solicitor general's voice so influential at the high court.
However, the court's response so far suggests a more modest conclusion about the impact of increased filings. Success still appears to turn on whether the solicitor general has made a persuasive argument, not merely on the unusual nature of the filing itself.
This suggests that while the frequency of uninvited briefs has increased, the justices continue to evaluate them on their substantive merits rather than being swayed purely by their rarity. The court seems to be adapting to the new normal rather than being distracted by it.
The long-term implications of this shift remain unclear. If future administrations continue the practice of more frequent unsolicited filings, it could permanently alter the dynamics of Supreme Court practice. The solicitor general's office might need to develop new strategies for maintaining its influence in an environment where its voice is heard more often but potentially carries less automatic weight.
Alternatively, future administrations might return to the traditional approach of restraint, viewing the current period as an aberration rather than a new normal. The institutional memory of the solicitor general's office runs deep, and the benefits of selective engagement may ultimately reassert themselves.
What seems certain is that the second Trump administration has tested long-standing norms about how the federal government engages with the Supreme Court at the certiorari stage. Whether this represents a temporary deviation or a permanent shift in practice will likely depend on how effectively the court continues to respond to the substance rather than the frequency of the solicitor general's interventions.