Solicitor General of the United States
Flag of the United States Solicitor General
Incumbent
Elizabeth Prelogar
since October 28, 2021
United States Department of Justice
StyleMr. or Madam Solicitor General
Reports toUnited States Attorney General
SeatSupreme Court Building and Department of Justice Headquarters
AppointerThe President
with Senate advice and consent
Constituting instrument28 U.S.C. § 505
FormationOctober 1870
First holderBenjamin Bristow
DeputyPrincipal Deputy Solicitor General
Websitejustice.gov/osg
Organization of the office of the Solicitor General

The solicitor general of the United States, the fourth-highest-ranking official within the United States Department of Justice,[1] represents the federal government in cases before the U.S. Supreme Court. Elizabeth Prelogar has served in the role since October 28, 2021.

The solicitor general is appointed by the president and reports directly to the U.S. Attorney General.

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 solicitor general's office also reviews cases decided against the United States in the federal district courts and approves every case in which the government files an appeal.

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 solicitor general or one of the deputies typically argues the most important cases in the Supreme Court. Other cases may be argued by one of the assistants or another government attorney. The solicitors general tend to argue six to nine cases per Supreme Court term, while deputies argue four to five cases and assistants each argue two to three 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. Furthermore, when the Office of the Solicitor General endorses a petition for certiorari, review is frequently granted, which is remarkable given that only 75 to 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. 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.

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."[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

When 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

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,[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

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
information 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

Notes

  1. ↑ 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.
  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.
  5. ↑ 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.
  6. ↑ 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.
  7. ↑ 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.
  8. 1 2 3 McElroy, Lisa (February 10, 2010). ""CVSG"s in plain English". ScotusBlog. Retrieved January 13, 2015.
  9. 1 2 3 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.
  10. ↑ 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.
  11. ↑ Amy Howe (December 23, 2009). "New invitation brief from Texas Solicitor General". SCOTUSblog. Retrieved March 3, 2023.
  12. ↑ Amy Howe (October 5, 2009). "More on CVSG-Texas in Rhine v. Deaton". SCOTUSblog. Retrieved March 3, 2023.
  13. ↑ Suter, William. "Clerk of the U.S. Supreme Court". U.S. Supreme Court Week (Interview). C-SPAN.
  14. ↑ Toobin, Jeffrey. "Money Unlimited, How Chief Justice John Roberts Orchestrated the Citizens United Decision". The New Yorker. Retrieved May 16, 2012.
  15. ↑ Herz, Michael Eric (2003). "Washington, Patton, Schwartzkopf, and . . . Ashcroft?". SSRN Electronic Journal. doi:10.2139/ssrn.366920. ISSN 1556-5068.
  16. ↑ 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.
  17. ↑ 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).
  18. ↑ "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)
  19. ↑ Biographies of Current Justices of the Supreme Court.
  20. ↑ Stephanie Woodrow, Ex-Prosecutor to Join New York Attorney General's Office, Main Justice, December 23, 2010.
  21. ↑ S. Hrg. 109-46
  22. ↑ U.S. Department of Justice, Paul Clement to Serve As Acting Solicitor General, July 12, 2004.
  23. ↑ Tom Goldstein, Neal Katyal to be Principal Deputy Solicitor General, SCOTUSblog, January 17, 2009.
  24. ↑ Brent Kendall, Feds Prevail in Spat with Former Acting Solicitor General, Wall Street Journal, May 20, 2012
  25. ↑ Ashby Jones, DOJ Taps 34-Year-Old for High-Ranking Position in SG's Office, Wall Street Journal, August 10, 2010
  26. ↑ Tony Mauro, Surprise Appointment in SG's Office, The BLT: The Blog of the Legal Times, August 10, 2010.
  27. ↑ U.S. Department of Justice, Solicitor General Donald B. Verrilli Appoints Sri Srinivasan as Principal Deputy Solicitor General, August 26, 2011.
  28. ↑ Sri Srinivasan, U.S. Court of Appeals for the District of Columbia Circuit
  29. ↑ Tom Goldstein, The new Principal Deputy Solicitor General, SCOTUSblog, August 9, 2013.
  30. ↑ Tony Mauro, Gershengorn Named Principal Deputy Solicitor General, The BLT: The Blog of the Legal Times, August 12, 2013
  31. ↑ "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.
  32. ↑ "DOJ's Jeffrey Wall Will Be Acting US Solicitor, as Noel Francisco Heads Out". Law.com. June 17, 2020. Retrieved July 7, 2020.

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.
  • Jost, Kenneth (2012). The Supreme Court A to Z. Los Angeles: CQ Press.
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