Loyalty and Deference at Oral Arguments: An Empirical Examination of How Supreme Court Justices Treat Solicitors General

It is well documented that when the Office of the Solicitor General argues before the United States Supreme Court it is widely successful. Scholars have taken this success as evidence that the Court is deferential to the Solicitor General’s office. This Article argues, however, that success is not synonymous with deference. Instead, by examining how the Justices treat the Solicitor General and deputies, this Article develops a more nuanced measure of deference to explain how and why the Court treats the Solicitor General differently than it treats other attorneys who appear before the nation’s highest court.

This Article uses this measure to test competing explanations of Solicitor General influence and overcome the observational equivalence between success and deference that beleaguers previous research. The results of this study support the argument that, during oral arguments, Justices on the Court are more deferential over time to the Solicitor General of the President who appointed him or her, than toward other Solicitors General.