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Are SCOTUS Justices and the Solicitor General Email Pals?

By Casey C. Sullivan, Esq. on January 15, 2016 | Last updated on March 21, 2019

Did Paul D. Clement forward golf tips to Chief Justice Roberts? Has Justice Sotomayor ever sent adorable cat pics to Donald Verrilli?

It's unlikely, but if they did, we might soon find out. That's because a journalist from Vice News is currently suing the Department of Justice for access to any emails between the Supreme Court justices and former or current U.S. Solicitors General. That is, should such emails even exist.

Let Me Find That FOIA

The lawsuit was filed January 1st, by Justin Leopold under the Freedom of Information Act. Leopold is a journalist with Vice and a veteran public records litigant, according to the National Law Journal. (Vice, in case you're not familiar, was once a hipster rag known for its aggressive stance on mullets and spandex. It's still that, but it also has a somewhat respectable news crew these days.)

The Supreme Court, like all federal courts, is exempt from FOIA, but the DOJ is not. If Leopold's suit is successful, it could expose potential ex parte communication between the Justices and the S.G., if any email communication exists.

A Tight Relationship Between the Supreme Court and the S.G.

Leopold's lawsuit highlights the often close connection between the Supreme Court and the Solicitor General's office. Justices Thurgood Marshall and Elena Kagan, for example, both served as Solicitor General before joining the Supreme Court. Chief Justice Roberts even did a stint as acting S.G., for a single case in 1990.

(Interestingly, one Solicitor General, Charles Evans Hughes, Jr., was forced to resign when his father was appointed as Chief Justice.)

But the revolving door isn't exactly between Solicitors General's office and the bench. It's between S.G. and the Supreme Court bar. As SCOTUSblog pointed out in 2011, "with the exception of Elena Kagan, each of the Solicitors General who served after 1996 now heads a litigation practice primarily focused on the Supreme Court."

Email? Carrier Pigeons Are More Likely

Even if Leopold's suit is successful at compelling the release of S.G.-SCOTUS emails -- a big if -- it's very possible that there will be no emails to release.

Leopold readily admits that he has no idea whether there are any emails between the Court and the Solicitor General. And email itself isn't something that the Supreme Court has latched on to. As the suit notes, Justice Kagan revealed in 2013 that the court "hasn't really 'gotten to' email."

Indeed, the Supreme Court isn't just low-tech. It's almost no-tech. Not only do most justices not use email, according to Justice Kagan's estimation, but some Supreme Court justices don't even understand the basics of everyday technology like text messages.

During oral arguments in City of Ontario v. Quon, several justices struggled with the fundamentals of SMS communication. If two texts come at once, Justice Kennedy wondered, "Does it say: 'Your call is important to us, and we will get back to you?'" (It doesn't.)

Justice Scalia, discussing racy texts, questioned whether someone could "print these spicy little conversations and send them to his buddies?" (Probably, but you might as well forward them via telegraph.)

It turns out that Leopold might have more success in his suit if he expanded the scope to cover parchment and quill-based communication.

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