Solicitor General of the United States
The Solicitor General of the United States (USSG or SG), the fourth-highest-ranking official within the United States Department of Justice,[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.
"USSG" redirects here. For the U.S. Sentencing Guidelines, see United States Federal Sentencing Guidelines. For the U.S. Surgeon General, see Surgeon General of the United States.Solicitor General of the United States
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 argues 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 the whether government will file an appeal.
Elizabeth Prelogar has served as Solicitor General since October 28, 2021.
Composition of the Office of the Solicitor General[edit]
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[edit]
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 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. 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[edit]
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[edit]
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]
