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 Solicitor General, Noel Francisco took office on September 19, 2017. 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.
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.
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" 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.
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." 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.
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). 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.
Although the CVSG is technically an invitation, the Solicitor General's office treats it as tantamount to a command. 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."
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. 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.
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.
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, although Elena Kagan, the only woman to hold the office, elected to forgo the practice.
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.
|Picture||Solicitor General||Date of Service||Appointing President|
|Benjamin Bristow||October 1870 – November 1872||Ulysses Grant|
|Samuel Phillips||November 1872 – May 1885|
|John Goode||May 1885 – August 1886||Grover Cleveland|
|George Jenks||July 1886 – May 1889|
|Orlow Chapman||May 1889 – January 1890||Benjamin Harrison|
|William Taft||February 1890 – March 1892|
|Charles Aldrich||March 1892 – May 1893|
|Lawrence Maxwell||April 1893 – January 1895||Grover Cleveland|
|Holmes Conrad||February 1895 – July 1897|
|John Richards||July 1897 – March 1903||William McKinley|
|Henry Hoyt||February 1903 – March 1909||Teddy Roosevelt|
|Lloyd Bowers||April 1909 – September 1910||William Taft|
|Frederick Lehmann||December 1910 – July 1912|
|William Bullitt||July 1912 – March 1913|
|John Davis||August 29, 1913 – November 21, 1918||Woodrow Wilson|
|Alexander King||November 21, 1918 – May 24, 1920|
|William Frierson||June 1920 – June 1921|
|James Beck||June 1921 – June 1925||Warren Harding|
|William Mitchell||June 4, 1925 – March 4, 1929||Calvin Coolidge|
|Charles Hughes||May 1929 – April 1930||Herbert Hoover|
|Thomas Thacher||March 1930 – May 1933|
|James Biggs||May 1933 – April 1935||Franklin Roosevelt|
|Stanley Reed||April 1935 – January 27, 1938|
|Robert Jackson||March 1938 – January 18, 1940|
|Francis Biddle||January 22, 1940 – August 25, 1941|
|Charles Fahy||November 1, 1941 – September 1945|
|Howard McGrath||October 1945 – October 1946||Harry Truman|
|Philip Perlman||July 1947 – August 1952|
|Walter Cummings||December 1952 – March 1953|
|Simon Sobeloff||February 1954 – July 1956||Dwight Eisenhower|
|Lee Rankin||August 1956 – January 1961|
|Archibald Cox||January 1961 – July 1965||John F. Kennedy|
|Thurgood Marshall||August 23, 1965 – August 30, 1967||Lyndon Johnson|
|Erwin Griswold||October 1967 – March 21, 1973|
|Robert Bork||March 21, 1973 – January 20, 1977||Richard Nixon|
|January 20, 1977 – March 28, 1977||Jimmy Carter|
|Wade McCree||March 28, 1977 – January 20, 1981|
|Rex Lee||August 1981 – June 1, 1985||Ronald Reagan|
|Charles Fried||June 1, 1985 – January 20, 1989
Acting: June 1, 1985 – October 23, 1985
|January 20, 1989 – May 26, 1989||George H. W. Bush|
|Ken Starr||May 26, 1989 – January 20, 1993|
|January 20, 1993 – June 7, 1993||Bill Clinton|
|Drew Days||June 7, 1993 – July 1, 1996|
|July 1, 1996 – November 13, 1997|
|Seth Waxman||November 13, 1997 – January 20, 2001|
|January 20, 2001 – June 11, 2001||George W. Bush|
|Ted Olson||June 11, 2001 – July 10, 2004|
|Paul Clement||July 11, 2004 – June 19, 2008
Acting: July 11, 2004 – June 13, 2005
|Gregory Garre||June 19, 2008 – January 16, 2009
Acting: June 19, 2008 – October 2, 2008
|January 16, 2009 – March 19, 2009||Barack Obama|
|Elena Kagan||March 19, 2009 – May 17, 2010|
|May 17, 2010 – June 9, 2011|
|Don Verrilli||June 9, 2011 – June 25, 2016|
|June 25, 2016 – January 20, 2017|
|January 20, 2017 – March 10, 2017||Donald Trump|
|March 10, 2017 – September 19, 2017|
|Noel Francisco||September 19, 2017 – present|