Having just written about the need of the SEC to convince the Solicitor General to file an amicus brief at the Supreme Court in Charter (because, although an "independent agency," the SEC cannot represent itself before the High Court), a case involving the meaning of primary liability under Rule 10b-5, we have come to learn that the deadline passed for filing briefs and none was filed by the Solicitor General. An article on the subject in the Washington Post ishere and in the WSJ Law bloghere.
This demonstrates that the SEC failed to convince the Solicitor General of its position, no doubt a result of a disagreement between an independent agency and the Bush Administration. In deciding the case, therefore, the Supreme Court will lack any insight into the issue from the agency responsible for regulating the securities markets.
This should, however, not be viewed entirely as a loss for the plaintiffs in Charter. It could easily have been worse. The Solicitor General could have filed a brief taking positions opposite of those taken by the Commission. It has happened before. In CTS Corp. v. Dynamics Corp., a case back in the 1980s involving the constitutionality of a control share acquisition statute, the Solicitor General took a position on preemption inconsistent with the views of the Commission.
The Commission's decision to recommend support for the plaintiffs in Charter may, therefore, have created sufficient disagreement to cause the Solicitor to take a pass on the case entirely and not write a brief supporting the reasoning of the 8th Circuit. Silence from the federal government may have been the best plaintiffs could have expected. It does raise the issue of whether the SEC, like the FTC, ought to have the right to represent itself at the Supreme Court, at least where the Solicitor General's Office refuses. This authority was considered in the 1970s but never adopted.