The solicitor general of the United States (USSG or SG), the fourth-highest-ranking official within the United States Department of Justice (DOJ),[1] represents the federal government in cases before the Supreme Court of the United States. The solicitor general is appointed by the president and reports directly to the United States attorney general.
| Solicitor General of the United States | |
|---|---|
Flag of the United States solicitor general | |
| United States Department of Justice | |
| Style | Mr. or Madam Solicitor General General (in the Supreme Court) |
| Reports to | Attorney General |
| Seat | Supreme Court Building and Department of Justice Headquarters |
| Appointer | The President with Senate advice and consent |
| Constituting instrument | 28 U.S.C. § 505 |
| Formation | October 1870 |
| First holder | Benjamin Bristow |
| Deputy | Principal Deputy Solicitor General |
| Website | justice.gov/osg |
The solicitor general's office argues on behalf of the federal government in almost every Supreme Court case in which the United States is a party and also represents in most cases in which the government has filed a brief as amicus curiae. In the United States courts of appeals, the solicitor general's office reviews cases decided against the United States and determines whether the government will seek review in the Supreme Court. The solicitor general's office also reviews cases decided against the United States in the United States district courts and decides whether the government will file an appeal.
Elizabeth Prelogar has served as solicitor general since October 28, 2021.
Composition of the Office of the Solicitor General
editThe 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 solicitor general or one of the deputies typically presents the most important cases in the Supreme Court. Other cases may be argued by one of the assistants or another government attorney. The solicitor general tends to argue six to nine cases per Supreme Court term, while deputies argue four to five cases and assistants argue two to three cases each.[2]
Significance
editThe 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. Furthermore, when the Office of the Solicitor General endorses a petition for certiorari, review is frequently granted, which is influential given that only 75 to 125 of the over 7,500 petitions submitted each term are granted review by the Court.[4]
The solicitor general is considered an influential and knowledgeable member of the legal community with regard to Supreme Court litigation.[citation needed] Six 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 Roberts 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. The last former solicitor general to be successfully nominated to the court was Justice Elena Kagan.[5] 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.[citation needed]
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 who is statutorily required to be "learned in the law".[6] 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
editWhen determining whether to grant certiorari in a case where the federal government is not a party, the Court will sometimes request that the solicitor general weigh in, a procedure referred to as a "call for the views of the solicitor general" (CVSG).[7] 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.[8]
Although the CVSG is technically an invitation, the solicitor general's office treats it as tantamount to a command.[8] Philip Elman, who served as an attorney in the solicitor general's office and who was the 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."[9][10]
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.[9] 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.[9]
Although there is usually 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.[8]
The Supreme Court has also occasionally invited a state attorney general to express a view on a petition related to that state. In 2009, for the first time, the invitation was directed instead to a state solicitor general,[11] James Ho of Texas, earning the request the nickname "CVSG-Texas."[12]
Traditions
editSeveral 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,[13] although Elena Kagan, the first woman to hold the office on other than an acting basis, elected to forgo the practice.[14]
During oral argument, the members of the Court often address the solicitor general as "General," Some legal commentators such as Michael Herz and Timothy Sandefur have disagreed with this usage, saying that "general" is a postpositive adjective (which modifies the noun "solicitor"), and is not a title itself.[15][16]
Another tradition is the practice of confession of error. If the government prevailed in the lower court but the solicitor general disagrees with the result, the solicitor general may confess error, after which the Supreme Court will vacate the lower court's ruling and send the case back for reconsideration.[17]
List of solicitors general
edit| Image | Name | Start | End | President | |
|---|---|---|---|---|---|
| Benjamin Bristow | October 11, 1870 | November 15, 1872 | Ulysses Grant | ||
| Samuel Phillips | December 11, 1872 | May 1, 1885 | |||
| John Goode | May 1, 1885 | August 5, 1886 | Grover Cleveland | ||
| George Jenks | July 30, 1886 | May 29, 1889 | |||
| Orlow Chapman | May 29, 1889 | January 19, 1890 | Benjamin Harrison | ||
| William Taft | February 4, 1890 | March 20, 1892 | |||
| Charles Aldrich | March 21, 1892 | May 28, 1893 | |||
| Lawrence Maxwell | April 6, 1893 | January 30, 1895 | Grover Cleveland | ||
| Holmes Conrad | February 6, 1895 | July 1, 1897 | |||
| John Richards | July 6, 1897 | March 16, 1903 | William McKinley | ||
| Henry Hoyt | February 25, 1903 | March 31, 1909 | Theodore Roosevelt | ||
| Lloyd Bowers | April 1, 1909 | September 9, 1910 | William Taft | ||
| Frederick Lehmann | December 12, 1910 | July 15, 1912 | |||
| William Bullitt | July 16, 1912 | March 11, 1913 | |||
| John Davis | August 30, 1913 | November 26, 1918 | Woodrow Wilson | ||
| Alexander King | November 27, 1918 | May 23, 1920 | |||
| William Frierson | June 1, 1920 | June 30, 1921 | |||
| James Beck | June 1, 1921 | May 11, 1925 | Warren Harding | ||
| William Mitchell | June 4, 1925 | March 5, 1929 | Calvin Coolidge | ||
| Charles Hughes | May 27, 1929 | April 16, 1930 | Herbert Hoover | ||
| Thomas Thacher | March 22, 1930 | May 4, 1933 | |||
| James Biggs | May 5, 1933 | March 24, 1935 | Franklin Roosevelt | ||
| Stanley Reed | March 25, 1935 | January 30, 1938 | |||
| Robert Jackson | March 5, 1938 | January 17, 1940 | |||
| Francis Biddle | January 22, 1940 | September 4, 1941 | |||
| Charles Fahy | November 15, 1941 | September 27, 1945 | |||
| Howard McGrath | October 4, 1945 | October 7, 1946 | Harry Truman | ||
| Philip Perlman | July 30, 1947 | August 15, 1952 | |||
| Walter Cummings | December 2, 1952 | March 1, 1953 | |||
| Simon Sobeloff | February 10, 1954 | July 19, 1956 | Dwight Eisenhower | ||
| Lee Rankin | August 4, 1956 | January 23, 1961 | |||
| Archibald Cox | January 24, 1961 | July 31, 1965 | John F. Kennedy | ||
| Thurgood Marshall | August 11, 1965 | August 30, 1967 | Lyndon Johnson | ||
| Erwin Griswold | October 12, 1967 | June 25, 1973 | |||
| Robert Bork | June 27, 1973 | January 20, 1977 | Richard Nixon | ||
| Gerald Ford | |||||
| Daniel Friedman Acting |
January 20, 1977 | March 4, 1977 | Jimmy Carter | ||
| Wade McCree | March 4, 1977 | January 20, 1981 | |||
| Rex Lee | August 6, 1981 | June 1, 1985 | Ronald Reagan | ||
| Charles Fried | June 1, 1985 Acting: June 1, 1985 – October 23, 1985 |
January 20, 1989 | |||
| William Bryson Acting |
January 20, 1989 | May 27, 1989 | George H. W. Bush | ||
| Ken Starr | May 27, 1989 | January 20, 1993 | |||
| William Bryson Acting |
January 20, 1993 | June 7, 1993 | Bill Clinton | ||
| Drew Days | June 7, 1993 | June 28, 1996 | |||
| Walter Dellinger Acting |
June 28, 1996 | November 7, 1997 | |||
| Seth Waxman | November 7, 1997 | January 20, 2001 | |||
| Barbara Underwood Acting |
January 20, 2001 | June 13, 2001 | George W. Bush | ||
| Ted Olson | June 13, 2001 | July 13, 2004 | |||
| Paul Clement | July 13, 2004 Acting: July 13, 2004 – June 13, 2005 |
June 2, 2008 | |||
| Gregory Garre | June 2, 2008 Acting: June 2, 2008 – October 2, 2008 |
January 20, 2009 | |||
| Edwin Kneedler Acting |
January 20, 2009 | March 20, 2009 | Barack Obama | ||
| Elena Kagan | March 20, 2009 | May 17, 2010 | |||
| Neal Katyal Acting |
May 17, 2010 | June 9, 2011 | |||
| Don Verrilli | June 9, 2011 | June 25, 2016 | |||
| Ian Gershengorn Acting |
June 25, 2016 | January 20, 2017 | |||
| Noel Francisco Acting |
January 20, 2017 | March 10, 2017 | Donald Trump | ||
| Jeff Wall Acting |
March 10, 2017 | September 19, 2017 | |||
| Noel Francisco | September 19, 2017 | July 3, 2020 | |||
| Jeff Wall Acting |
July 3, 2020 | January 20, 2021 | |||
| Elizabeth Prelogar Acting |
January 20, 2021 | August 11, 2021 | Joe Biden | ||
| Brian Fletcher Acting |
August 11, 2021 | October 28, 2021 | |||
| Elizabeth Prelogar | October 28, 2021 | present | |||
- Note: Some terms overlap because the incumbent remained in office after a successor was named. The office has been vacant at times while awaiting the nomination or confirmation of a successor.
List of notable principal deputy solicitors general
edit- Paul M. Bator – October 1982 to December 1983
- Donald B. Ayer – June 1986 to December 1988
- John Roberts – October 1989 to January 1993[18][19] (became Chief Justice)
- Paul Bender – 1993 to 1996
- Seth Waxman – 1996 to November 13, 1997 (became Solicitor General)
- Barbara Underwood – March 23, 1998 to June 11, 2001 (acting SG from January to June 2001)[20]
- Paul D. Clement – February 2001 to July 11, 2004 (became acting SG)[21][22]
- Gregory G. Garre – September 2005 - June 19, 2008 (became acting SG)
- Neal Katyal – February 3, 2009 to May 17, 2010 (became acting SG)[23][24]
- Leondra Kruger – acting principal deputy SG named on May 17, 2010, to June 9, 2011 (became California Supreme Court Associate Justice)[25][26]
- Neal Katyal – June 9, 2011 to August 26, 2011
- Sri Srinivasan – August 26, 2011 to May 24, 2013 (became Chief Judge of D.C. Circuit)[27][28]
- Ian Heath Gershengorn – September 2013 to June 25, 2016 (became Acting SG)[29][30]
- Noel Francisco – January 20, 2017 to March 10, 2017 (became SG)
- Jeff Wall – March 10, 2017 to January 20, 2021 (became Acting SG)[31][32]
- Elizabeth Prelogar – January 20, 2021 - October 28, 2021 (became SG)
- Brian Fletcher - October 28, 2021 – Present (became Acting SG)
Notes
edit- ^ Ginsburg, Benjamin; Lowi, Theodore J.; Weir, Margaret; Tolbert, Caroline J.; Campbell, Andrea L. (2019). We The People: An Introduction to American Politics (12th ed.). New York, New York: W.W. Norton & Company, Inc. p. 612. ISBN 978-0-393-66463-8.
- ^ Bhatia, Kedar S. (April 17, 2011). "Updated Advocate Scorecard (OT00-10)". Daily Writ.
- ^ Caplan, Lincoln (1987). The Tenth Justice: The Solicitor General and the Rule of Law. New York: Knopf.[page needed]
- ^ 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.
- ^ Barnes, Robert (May 13, 2010). "In Elena Kagan's work as solicitor general, few clues to her views". ISSN 0190-8286. Retrieved April 28, 2023.
- ^ Waxman, Seth (June 1, 1998). "'Presenting the Case of the United States As It Should Be': The Solicitor General in Historical Context". Journal of Supreme Court History. 23 (2): 3–25. doi:10.1111/j.1540-5818.1998.tb00134.x. S2CID 146716511. Retrieved June 7, 2011.
- ^ Black, Ryan C.; Owens, Ryan J. (April 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.
- ^ a b c McElroy, Lisa (February 10, 2010). ""CVSG"s in plain English". ScotusBlog. Retrieved January 13, 2015.
- ^ 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. 35: 35–53. doi:10.1111/j.1540-5818.2010.01229.x. S2CID 144427264. SSRN 1496643.
- ^ 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. doi:10.2307/1341096. JSTOR 1341096.
- ^ Amy Howe (December 23, 2009). "New invitation brief from Texas Solicitor General". SCOTUSblog. Retrieved March 3, 2023.
- ^ Amy Howe (October 5, 2009). "More on CVSG-Texas in Rhine v. Deaton". SCOTUSblog. Retrieved March 3, 2023.
- ^ Suter, William. "Clerk of the U.S. Supreme Court". U.S. Supreme Court Week (Interview). C-SPAN.
- ^ Toobin, Jeffrey. "Money Unlimited, How Chief Justice John Roberts Orchestrated the Citizens United Decision". The New Yorker. Retrieved May 16, 2012.
- ^ Herz, Michael Eric (2003). "Washington, Patton, Schwartzkopf, and . . . Ashcroft?". SSRN Electronic Journal. doi:10.2139/ssrn.366920. ISSN 1556-5068.
- ^ Sandefur, Timothy (2013). "So It's a Tax, Now What: Some of the Problems Remaining after NFIB v. Sebelius". Texas Review of Law and Politics. 17 (2). n.25.
- ^ 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).
- ^ "Archived copy" (PDF). leahy.senate.gov. Archived from the original (PDF) on January 30, 2006. Retrieved January 12, 2022.
{{cite web}}: CS1 maint: archived copy as title (link) - ^ Biographies of Current Justices of the Supreme Court.
- ^ Stephanie Woodrow, Ex-Prosecutor to Join New York Attorney General's Office, Main Justice, December 23, 2010.
- ^ S. Hrg. 109-46
- ^ U.S. Department of Justice, Paul Clement to Serve As Acting Solicitor General, July 12, 2004.
- ^ Tom Goldstein, Neal Katyal to be Principal Deputy Solicitor General, SCOTUSblog, January 17, 2009.
- ^ Brent Kendall, Feds Prevail in Spat with Former Acting Solicitor General, Wall Street Journal, May 20, 2012
- ^ Ashby Jones, DOJ Taps 34-Year-Old for High-Ranking Position in SG's Office, Wall Street Journal, August 10, 2010
- ^ Tony Mauro, Surprise Appointment in SG's Office, The BLT: The Blog of the Legal Times, August 10, 2010.
- ^ U.S. Department of Justice, Solicitor General Donald B. Verrilli Appoints Sri Srinivasan as Principal Deputy Solicitor General, August 26, 2011.
- ^ Sri Srinivasan, U.S. Court of Appeals for the District of Columbia Circuit
- ^ Tom Goldstein, The new Principal Deputy Solicitor General, SCOTUSblog, August 9, 2013.
- ^ Tony Mauro, Gershengorn Named Principal Deputy Solicitor General, The BLT: The Blog of the Legal Times, August 12, 2013
- ^ "Chris Geidner on Twitter: "Big news in here: Jeff Wall (Trump-era hire, came from Sullivan & Cromwell, is returning to DOJ) is now the US acting solicitor general."". Twitter. March 13, 2017. Retrieved July 7, 2020.
- ^ "DOJ's Jeffrey Wall Will Be Acting US Solicitor, as Noel Francisco Heads Out". Law.com. June 17, 2020. Retrieved July 7, 2020.
References
edit- 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.
- Jost, Kenneth (2012). The Supreme Court A to Z. Los Angeles: CQ Press.