It's interesting to compare Sauer's cases at SCOTUS to the criminal prosecutions of political opponents, where the administration's strategy really has been to throw everything at the wall and see what sticks. Including laughably weak cases against democratic legialators, James Comey, and Letitia James.
One hypothesis is that Sauer wants to win cases to maintain the public appearance of strength, rather than credibility with the court. I don't think the political criminal prosecutions have been beneficial for the administration. They look like clowns and haven't gotten anything done, and I'm pretty sure Mark Kelly and company have actually net benefitted, politcally. It's possible these prosecutions still have a chilling effect, but I tend to think they instead reveal that Trump does not have as much power as he claims he does.
In contrast, the winning record at SCOTUS creates the appearance that the court is aligned with the president, which is a political strength. I see a lot of people just assume the court will endorse whatever Trump is proposing, even in issues like birthright citizenship or federal control of elections where closer court watchers know he'll probably lose. Or alternatively, a strong record at SCOTUS makes Sauer look good within the executive branch, helping his own standing. He looks far more competent than Bondi, for instance.
Also worth noting the worst cases for the administration all arises because of Trump's buggest personal fixations. Vengance against his perceived enemies, birthright citizenship, tariffs, deploying the National Guard. On the cases that Trump isn't paying attention to, where Sauer has more tactical freedom, it seems reasonable for him to decide it's better to avoid losses, rather than eking out a few more marginal wins
"Put differently—why would SG Sauer want to bring to the Court only those cases for which he believes that the Administration has a very strong chance of success?
Maybe I’m being obtuse, but the answer to that question is not obvious. And I think the answer likely depends on some combination of political, legal, strategic, and personal considerations for Sauer."
As a 33 year veteran of DOJ Civil/Appellate who worked with every SG Office from Reagan through Obama, I can confidently say that what Sauer is doing is no different than what any other SG did during that time period. Every SG is concerned with the credibility of the Office, including the credibility of legal arguments. No one in that Office wants to get hammered during oral argument.
To me, the biggest thing this analysis misses is that a Supreme Court loss is worse than a lower court loss, both with respect to precedential effect, and the fact that the Supreme Court is likely to reach beyond the narrow issue presented in ways that could be adverse to the administration. So, avoiding major losses in the Supreme Court may be among the SG‘s top priorities, more so than the win-loss record across all courts.
In a post-Casa world, wouldn't those 70 cases in your hypo (those without particularly strong arguments on the government's side), only limit the agency of the government as-applied to those parties? If they went up to the Supreme Court, that would serve as quasi-precedent (or whatever interim docket opinions are post-Trump v. Boyle) for the entire country. By NOT appealing to the court the various injunctions below stay in place but they live to fight another day in say a more favorable district/circuit. Wouldn't that explain why they wouldn't want to appeal?
I also think you may be underestimating the credibility consideration. After all, isn't the Solicitor General the "10th justice?" The government, unlike many (but not all) private litigants, is a repeat player and has a huge stake not only in the decision of the court but also the scope of the ruling/contours of the decision. Even if you think the justices already have well developed legal methodologies, certainty you would think things like credibility could move the needle for the contours of an interim docket per curiam opinion without the well-developed briefing a merits opinion would have
The SG, on top of arguing in cases, also has a stake in credibility through the office's submission of amici briefs. Its an empirical question how much the justices care about any given amici brief, but I seem to remember an interview with a justice (Breyer?) saying that they/he pay special attention to amici briefs from well established, credible repeat players (think SG's office, ACLU, etc.) but not to others. I would imagine that the SG would like to stay in this "credible tier" if possible.
You took the words right out of my mouth law student person. Why set nationwide precedent when you can confine the loss to only the parties to that specific case?
Everyone in the administration is performing for an audience of one. I don't think he really cares about any of these cases one way or another, but being able to tout a string of victories is no doubt good for how he looks on TV.
I think the major concern is the worry that the Court might get sick of the Adminstration or upset that it puts the Court in so many difficult situations. Let's say there are 3 groups of cases:
A. Cases the Administration is likely to win and which the Court is perfectly happy to rule for the Administration in.
B. Cases where the Administration makes arguments the Court may be sympathetic to but which are controversial or which the Court would rather duck or at least would rather not consider on the shadow docket.
C. Cases where the Administration is likely to lose.
I don't think hearing cases in either A or C bothers the Court that much. But I think the B's bother the Court a lot-- and are a big reason why Supreme Court justices dating back to Taft have wanted to control the docket. If the shadow docket forces them to decide B's all the time, they aren't going to like it and they aren't going to be happy with the Administration lawyers who bring the B's up to the Court, and that could have a broader effect on whether they rule for the Administration in any cases where the Court doesn't have strong priors. No lawyer wants to get an important court annoyed at their client for this reason.
So the optimal strategy is to avoid bringing B's up to the Court if you can. The C's aren't a big problem other than that the Administration would lose them. The B's, however, are a problem.
It's interesting to compare Sauer's cases at SCOTUS to the criminal prosecutions of political opponents, where the administration's strategy really has been to throw everything at the wall and see what sticks. Including laughably weak cases against democratic legialators, James Comey, and Letitia James.
One hypothesis is that Sauer wants to win cases to maintain the public appearance of strength, rather than credibility with the court. I don't think the political criminal prosecutions have been beneficial for the administration. They look like clowns and haven't gotten anything done, and I'm pretty sure Mark Kelly and company have actually net benefitted, politcally. It's possible these prosecutions still have a chilling effect, but I tend to think they instead reveal that Trump does not have as much power as he claims he does.
In contrast, the winning record at SCOTUS creates the appearance that the court is aligned with the president, which is a political strength. I see a lot of people just assume the court will endorse whatever Trump is proposing, even in issues like birthright citizenship or federal control of elections where closer court watchers know he'll probably lose. Or alternatively, a strong record at SCOTUS makes Sauer look good within the executive branch, helping his own standing. He looks far more competent than Bondi, for instance.
Also worth noting the worst cases for the administration all arises because of Trump's buggest personal fixations. Vengance against his perceived enemies, birthright citizenship, tariffs, deploying the National Guard. On the cases that Trump isn't paying attention to, where Sauer has more tactical freedom, it seems reasonable for him to decide it's better to avoid losses, rather than eking out a few more marginal wins
"Put differently—why would SG Sauer want to bring to the Court only those cases for which he believes that the Administration has a very strong chance of success?
Maybe I’m being obtuse, but the answer to that question is not obvious. And I think the answer likely depends on some combination of political, legal, strategic, and personal considerations for Sauer."
As a 33 year veteran of DOJ Civil/Appellate who worked with every SG Office from Reagan through Obama, I can confidently say that what Sauer is doing is no different than what any other SG did during that time period. Every SG is concerned with the credibility of the Office, including the credibility of legal arguments. No one in that Office wants to get hammered during oral argument.
To me, the biggest thing this analysis misses is that a Supreme Court loss is worse than a lower court loss, both with respect to precedential effect, and the fact that the Supreme Court is likely to reach beyond the narrow issue presented in ways that could be adverse to the administration. So, avoiding major losses in the Supreme Court may be among the SG‘s top priorities, more so than the win-loss record across all courts.
In a post-Casa world, wouldn't those 70 cases in your hypo (those without particularly strong arguments on the government's side), only limit the agency of the government as-applied to those parties? If they went up to the Supreme Court, that would serve as quasi-precedent (or whatever interim docket opinions are post-Trump v. Boyle) for the entire country. By NOT appealing to the court the various injunctions below stay in place but they live to fight another day in say a more favorable district/circuit. Wouldn't that explain why they wouldn't want to appeal?
I also think you may be underestimating the credibility consideration. After all, isn't the Solicitor General the "10th justice?" The government, unlike many (but not all) private litigants, is a repeat player and has a huge stake not only in the decision of the court but also the scope of the ruling/contours of the decision. Even if you think the justices already have well developed legal methodologies, certainty you would think things like credibility could move the needle for the contours of an interim docket per curiam opinion without the well-developed briefing a merits opinion would have
The SG, on top of arguing in cases, also has a stake in credibility through the office's submission of amici briefs. Its an empirical question how much the justices care about any given amici brief, but I seem to remember an interview with a justice (Breyer?) saying that they/he pay special attention to amici briefs from well established, credible repeat players (think SG's office, ACLU, etc.) but not to others. I would imagine that the SG would like to stay in this "credible tier" if possible.
You took the words right out of my mouth law student person. Why set nationwide precedent when you can confine the loss to only the parties to that specific case?
Everyone in the administration is performing for an audience of one. I don't think he really cares about any of these cases one way or another, but being able to tout a string of victories is no doubt good for how he looks on TV.
I think the major concern is the worry that the Court might get sick of the Adminstration or upset that it puts the Court in so many difficult situations. Let's say there are 3 groups of cases:
A. Cases the Administration is likely to win and which the Court is perfectly happy to rule for the Administration in.
B. Cases where the Administration makes arguments the Court may be sympathetic to but which are controversial or which the Court would rather duck or at least would rather not consider on the shadow docket.
C. Cases where the Administration is likely to lose.
I don't think hearing cases in either A or C bothers the Court that much. But I think the B's bother the Court a lot-- and are a big reason why Supreme Court justices dating back to Taft have wanted to control the docket. If the shadow docket forces them to decide B's all the time, they aren't going to like it and they aren't going to be happy with the Administration lawyers who bring the B's up to the Court, and that could have a broader effect on whether they rule for the Administration in any cases where the Court doesn't have strong priors. No lawyer wants to get an important court annoyed at their client for this reason.
So the optimal strategy is to avoid bringing B's up to the Court if you can. The C's aren't a big problem other than that the Administration would lose them. The B's, however, are a problem.