Confessions at the Supreme Court: Judicial Response to Solicitor General Error

Abstract

As the chief litigator for the US government, the solicitor general plays a crucial role in the Supreme Court decision-making process. The justices and solicitor general share a mutually beneficial relationship that is reinforced by the solicitor general’s willingness to provide legal advice when asked. In this article, we examine whether and how this relationship changes when the solicitor general files a formal “confession of error.” Using data on confessions filed between the 1979 and 2014 terms, we find the justices are significantly less likely to support the solicitor general’s position at multiple stages of the Court’s decision-making process if the solicitor general confesses error in light of a policy change. This punishment is harshest when the solicitor general provides advice as an amicus curiae participant, but it is only temporary. These results provide new insight into the scope and limitations of benefits allotted to the Court’s “tenth justice.”

“Excuse me –” Race and Intersectionality of Interruptions at the U.S. Supreme Court

“…Repeat-player attorneys that have argued before the Court multiple times are significantly more likely to succeed (McGuire 1995, Nelson andEpstein 2022). Similarly, the Office of the Solicitor General, which has a unique relationship with the Court and is even referred to as "The Tenth Justice," also has an incredibly high level of success (Black and Owens 2012, Schoenherr and Waterbury 2022. While the performance and argument made by these skilled attorneys is important, it is likely because of the way they handle the questions the justices ask.…”