Solicitor General of the United States

Last updated on 14 June 2017

The United States Solicitor General is the third-highest-ranking official (co-equal in ranking with the United States Associate Attorney General) in the U.S. Department of Justice. The United States Solicitor General is the person appointed to represent the federal government of the United States before the Supreme Court of the United States. The current Acting Solicitor General, Jeffrey Wall, took office on March 10, 2017.[1] The Solicitor General determines the legal position that the United States will take in the Supreme Court. In addition to supervising and conducting cases in which the government is a party, the office of the Solicitor General also files amicus curiae briefs in cases in which the federal government has a significant interest in the legal issue. The office of the Solicitor General argues on behalf of the government in virtually every case in which the United States is a party, and also argues in most of the cases in which the government has filed an amicus brief. In the federal courts of appeal, the Office of the Solicitor General reviews cases decided against the United States and determines whether the government will seek review in the Supreme Court. The Office of the Solicitor General also reviews cases decided against the United States in the federal district courts and approves every case in which the government files an appeal.

Flag of the United States Solicitor General.svg
Flag of the United States Solicitor General.svg
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Organization of the office of the Solicitor General

Composition of the Office of the Solicitor General

The Solicitor General is assisted by four Deputy Solicitors General and seventeen Assistants to the Solicitor General. Three of the deputies are career attorneys in the Department of Justice. The remaining deputy is known as the "Principal Deputy," sometimes called the "political deputy" and, like the Solicitor General, typically leaves at the end of an administration. The current Principal Deputy is Jeffrey B. Wall, who succeeded Noel J. Francisco after Francisco was nominated to be Solicitor General in March 2017. The other deputies currently are Michael Dreeben, Edwin Kneedler, and Malcolm Stewart.

The Solicitor General or one of the deputies typically argues the most important cases in the Supreme Court. Cases not argued by the Solicitor General may be argued by one of the assistants or another government attorney. The Solicitors General tend to argue 6–9 cases per Supreme Court term, while deputies argue 4–5 cases and assistants each argue 2–3 cases.[2]

Significance

The Solicitor General, who has offices in the Supreme Court Building as well as the Department of Justice Headquarters, has been called the "tenth justice"[3] as a result of the close relationship between the justices and the Solicitor General (and their respective staffs of clerks and deputies). As the most frequent advocate before the Court, the Office of the Solicitor General generally argues dozens of times each term. As a result, the Solicitor General tends to remain particularly comfortable during oral arguments that other advocates would find intimidating. Furthermore, when the office of the Solicitor General endorses a petition for certiorari, review is frequently granted, which is remarkable given that only 75–125 of the over 7,500 petitions submitted each term are granted review by the Court.[4]

Other than the justices themselves, the Solicitor General is among the most influential and knowledgeable members of the legal community with regard to Supreme Court litigation. Five Solicitors General have later served on the Supreme Court: William Howard Taft (who served as the 27th President of the United States before becoming Chief Justice of the United States), Stanley Forman Reed, Robert H. Jackson, Thurgood Marshall, and Elena Kagan. Some who have had other positions in the office of the Solicitor General have also later been appointed to the Supreme Court. For example, Chief Justice John G. Roberts, Jr. was the Principal Deputy Solicitor General during the George H. W. Bush administration and Associate Justice Samuel Alito was an Assistant to the Solicitor General. Only one former Solicitor General has been nominated to the Supreme Court unsuccessfully, that being Robert Bork; however, no sitting Solicitor General has ever been denied such an appointment. Eight other Solicitors General have served on the United States Courts of Appeals.

Within the Justice Department, the Solicitor General exerts significant influence on all appeals brought by the department. The Solicitor General is the only U.S. officer that is statutorily required to be "learned in law."[5] Whenever the DOJ wins at the trial stage and the losing party appeals, the concerned division of the DOJ responds automatically and proceeds to defend the ruling in the appellate process. However, if the DOJ is the losing party at the trial stage, an appeal can only be brought with the permission of the Solicitor General. For example, should the tort division lose a jury trial in federal district court, that ruling cannot be appealed by the Appellate Office without the approval of the Solicitor General.

Call for the Views of the Solicitor General

When determining whether to grant certiorari in a case where the federal government is not a party, the Court will sometimes request the Solicitor General to weigh in, a procedure referred to as a "Call for the Views of the Solicitor General" (CVSG).[6] In response to a CVSG, the Solicitor General will file a brief opining on whether the petition should be granted and, usually, which party should prevail.[7]

Although the CVSG is technically an invitation, the Solicitor General's office treats it as tantamount to a command.[7] Philip Elman, who served as an attorney in the Solicitor General's office and who was primary author of the federal government's brief in Brown v. Board of Education, wrote "When the Supreme Court invites you, that's the equivalent of a royal command. An invitation from the Supreme Court just can't be rejected."[8][9]

The Court typically issues a CVSG where the justices believe that the petition is important, and may be considering granting it, but would like a legal opinion before making that decision.[8] Examples include where there is a federal interest involved in the case; where there is a new issue for which there is no established precedent; or where an issue has evolved, perhaps becoming more complex or affecting other issues.[8]

Although there is no deadline by which the Solicitor General is required to respond to a CVSG, briefs in response to the CVSG are generally filed at three times of the year: late May, allowing the petition to be considered before the Court breaks for summer recess; August, allowing the petition to go on the "summer list", to be considered at the end of recess; and December, allowing the case to be argued in the remainder of the current Supreme Court term.[7]

Traditions

Several traditions have developed since the Office of Solicitor General was established in 1870. Most obviously to spectators at oral argument before the Court, the Solicitor General and his or her deputies traditionally appear in formal morning coats,[10] although Elena Kagan, the only woman to hold the office, elected to forgo the practice.[11]

During oral argument, the members of the Court often address the Solicitor General as "General."[12][13]

Another tradition, possibly unique to the United States, is the practice of confession of error. If the government prevailed in the lower court but the Solicitor General disagrees with the result, he or she may confess error, after which the Supreme Court will vacate the lower court's ruling and send the case back for reconsideration.[14]

List of Solicitors General

Benjamin Helm Bristow, Brady-Handy bw photo portrait, ca 1870-1880.jpg
Benjamin Helm Bristow, Brady-Handy bw photo portrait, ca 1870-1880.jpg
Samuel F. Phillips.jpg
Samuel F. Phillips.jpg
John Goode - Brady-Handy.jpg
John Goode - Brady-Handy.jpg
George A. Jenks.jpg
George A. Jenks.jpg
Orlow W. Chapman.jpg
Orlow W. Chapman.jpg
William Howard Taft, Bain bw photo portrait, 1908.jpg
William Howard Taft, Bain bw photo portrait, 1908.jpg
Charles H. Aldrich.jpeg
Charles H. Aldrich.jpeg
Lawrence Maxwell Jr.jpeg
Lawrence Maxwell Jr.jpeg
Holmes Conrad.jpg
Holmes Conrad.jpg
Richards-large.jpg
Richards-large.jpg
Hoyt-large.jpg
Hoyt-large.jpg
Bowers-large.jpg
Bowers-large.jpg
FWLehman.jpg
FWLehman.jpg
Bullitt-large.jpg
Bullitt-large.jpg
John William Davis.jpg
John William Davis.jpg
Alexander Campbell King by Gari Milchers (1922).jpg
Alexander Campbell King by Gari Milchers (1922).jpg
William L. Frierson DOJ photo.jpg
William L. Frierson DOJ photo.jpg
James M Beck.jpg
James M Beck.jpg
William D. Mitchell cph.3b30394.jpg
William D. Mitchell cph.3b30394.jpg
Charles Evans Hughes jr.jpg
Charles Evans Hughes jr.jpg
Thomas D Thatcher.jpg
Thomas D Thatcher.jpg
James crawford biggs.jpg
James crawford biggs.jpg
Stanley Forman Reed.jpg
Stanley Forman Reed.jpg
Roberthjackson.jpg
Roberthjackson.jpg
Francis Biddle cph.3b27524.jpg
Francis Biddle cph.3b27524.jpg
Charles Fahy - Project Gutenberg etext 20587.jpg
Charles Fahy - Project Gutenberg etext 20587.jpg
J. Howard McGrath.jpg
J. Howard McGrath.jpg
Philip B. Perlman (2005).jpg
Philip B. Perlman (2005).jpg
Cummings-large.jpg
Cummings-large.jpg
Sobeloff.jpg
Sobeloff.jpg
J. Lee Rankin.jpg
J. Lee Rankin.jpg
ArchibaldCox.jpg
ArchibaldCox.jpg
Thurgoodmarshall1967.jpg
Thurgoodmarshall1967.jpg
Griswolderwin.jpg
Griswolderwin.jpg
Robert Bork.jpg
Robert Bork.jpg
Daniel Mortimer Friedman CAFC portrait.jpg
Daniel Mortimer Friedman CAFC portrait.jpg
Wademccree.jpg
Wademccree.jpg
Rex Lee-large.jpg
Rex Lee-large.jpg
Charles Fried.jpg
Charles Fried.jpg
William Curtis Bryson.jpg
William Curtis Bryson.jpg
Kenneth W. Starr.jpg
Kenneth W. Starr.jpg
William Curtis Bryson.jpg
William Curtis Bryson.jpg
Drew S. Days, III.jpg
Drew S. Days, III.jpg
Walter E. Dellinger III.jpg
Walter E. Dellinger III.jpg
Waxman.jpg
Waxman.jpg
No image.svg
No image.svg
Theodore Olson.jpg
Theodore Olson.jpg
Paul D. Clement.jpg
Paul D. Clement.jpg
Gregory G. Garre.jpg
Gregory G. Garre.jpg
Edwin Kneedler.jpg
Edwin Kneedler.jpg
Elena Kagan SCOTUS portrait.jpg
Elena Kagan SCOTUS portrait.jpg
Neal Katyal portrait.jpg
Neal Katyal portrait.jpg
Donald Verrilli -DOJ Portrait-.jpg
Donald Verrilli -DOJ Portrait-.jpg
Official-gershengorn.jpg
Official-gershengorn.jpg
No image.svg
No image.svg
No image.svg
No image.svg
No image.svg
No image.svg

List of notable Principal Deputy Solicitors General

Notes

  1. ^ "Trump nominates D.C. lawyer Noel Francisco as solicitor general". Washington Post. March 8, 2017.
  2. ^ Bhatia, Kedar S. (April 17, 2011). "Updated Advocate Scorecard (OT00-10)". Daily Writ.
  3. ^ Caplan, Lincoln (1987). The Tenth Justice: The Solicitor General and the Rule of Law. New York: Knopf.
  4. ^ Thompson, David C.; Wachtell, Melanie F. (2009). "An Empirical Analysis of Supreme Court Certiorari Petition Procedures". George Mason University Law Review. 16 (2): 237, 275. SSRN 1377522 Freely accessible.
  5. ^ Waxman, Seth (June 1, 1998). "'Presenting the Case of the United States As It Should Be': The Solicitor General in Historical Context". Address to the Supreme Court Historical Society. Retrieved June 7, 2011.
  6. ^ Black, Ryan C.; Owens, Ryan J. (Apr 30, 2012). The Solicitor General and the United States Supreme Court: Executive Branch Influence and Judicial Decisions. Cambridge University Press. pp. 142–143. ISBN 9781107015296. OCLC 761858397.
  7. ^ a b c McElroy, Lisa (February 10, 2010). ""CVSG"s in plain English". ScotusBlog. Retrieved January 13, 2015.
  8. ^ a b c Lepore, Stefanie (December 2010). "The Development of the Supreme Court Practice of Calling for the Views of the Solicitor General". Journal of Supreme Court History. SSRN 1496643 Freely accessible.
  9. ^ Elman, Philip; Silber, Norman (February 1987). "The Solicitor General's Office, Justice Frankfurter, and Civil Rights Litigation, 1946-1960: An Oral History". Harvard Law Review. 100 (4): 817–852. JSTOR 1341096. doi:10.2307/1341096.
  10. ^ Suter, William. "Clerk of the U.S. Supreme Court". U.S. Supreme Court Week (Interview). C-SPAN.
  11. ^ Toobin, Jeffrey. "Money Unlimited, How Chief Justice John Roberts Orchestrated the Citizens United Decision". The New Yorker. Retrieved May 16, 2012.
  12. ^ "General relativity". Grammarphobia. May 20, 2012.
  13. ^ Herz, Michael (Spring 2003). "Generals, Generals Everywhere".
  14. ^ Bruhl, Aaron (March 1, 2010). "Solicitor General Confessions of Error". PrawfsBlawg. Retrieved February 23, 2011. (Discussing GVRs (grant, vacate, remand) in the context of confessions of error).
  15. ^ a b "Nixon's Men: All Work and No Frills". The New York Times. March 21, 1973. p. 47.
  16. ^ Biographies of Current Justices of the Supreme Court.
  17. ^ Stephanie Woodrow, Ex-Prosecutor to Join New York Attorney General's Office, Main Justice, Dec. 23, 2010.
  18. ^ S. Hrg. 109-46
  19. ^ U.S. Department of Justice, Paul Clement to Serve As Acting Solicitor General, July 12, 2004.
  20. ^ Tom Goldstein, Neal Katyal to be Principal Deputy Solicitor General, SCOTUSblog, January 17, 2009.
  21. ^ Brent Kendall, Feds Prevail in Spat with Former Acting Solicitor General, Wall Street Journal, May 20, 2012
  22. ^ Ashby Jones, DOJ Taps 34-Year-Old for High-Ranking Position in SG's Office, Wall Street Journal, August 10, 2010
  23. ^ Tony Mauro, Surprise Appointment in SG's Office, The BLT: The Blog of the Legal Times, Aug. 10, 2010.
  24. ^ U.S. Department of Justice, Solicitor General Donald B. Verrilli Appoints Sri Srinivasan as Principal Deputy Solicitor General, Aug. 26, 2011.
  25. ^ Sri Srinivasan, U.S. Court of Appeals for the District of Columbia Circuit
  26. ^ Tom Goldstein, The new Principal Deputy Solicitor General, SCOTUSblog, Aug. 9, 2013.
  27. ^ Tony Mauro, Gershengorn Named Principal Deputy Solicitor General, The BLT: The Blog of the Legal Times, Aug. 12, 2013

References

  • Caplan, Lincoln (1987). The Tenth Justice: The Solicitor General and the Rule of Law. New York: Knopf.
  • Hall, Kermit L. (1992). The Oxford Guide to the Supreme Court of the United States. New York: Oxford University Press.

External links

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