We previously discussed the Supreme Court’s request that the Solicitor General respond to the cert petition in Foerster v. United States, No. 07-359. Here is a link to the cert petition that resulted in that request. Please note that I butchered some formatting and pagination to make it all one file — the original is much more pretty. But it should be fairly evident by now that at CAAFlog, we care about substance, NOT style.

Merely obtaining a request that the SG respond to the cert petition is quite a feat. I haven’t yet been able to locate a precise stat for how often that occurs, but I can offer a rather bizarre proxy for that stat to at least demonstrate that it is rare. According to a recent book review by Professor David R. Stras of the University of Minnesota Law School, the percentage of cert pool memoranda “calling for a response or the views of the Solicitor General, among others,” dropped “from 7.7% of the certiorari docket during October Terms 1984 and 1985 to 5.7% for October Terms 1991 and 1992.” David R. Stras, Book Review Essay, 85 Tex. L. Rev. 947, 991 (2007). That doesn’t tell us what the percentage of actual requests was then or now, but it does suggest that such requests are uncommon.

I’ll keep digging to see if I can discover any stats for how often such requests are actually made (rather than how often the cert pool recommends such requests to those justices who participate in the cert pool) and how often cert is granted in cases where the Court has requested a response from the SG.

One Response to “Foerster cert petition”

  1. John O'Connor says:

    It seems to me that Foerster is akin to Davis v. United States, where the Supremes took a military case for an issue of general applicability (in that case, the effect of an ambiguous request for counsel), one that basically treats the CAAF as one of the federal courts of appeals that can be a source of criminal law cases. The other CAAF decisions that the Supreme Court has taken (Solorio, Weiss, Ryder, Scheffer, Goldsmith) have all considered the constitutionality of aspects or practices that are peculiar to the court-martial system.

    I think it’s a positive development if the Supreme Court looks to CAAF decisions for criminal law cases of general applicability in the same way as it would view decisioons from the Second Circuit. Such a practice elevates the standing of courts-martial in my mind.