Solicitor general Summary

  • Last updated on November 11, 2022

Person appointed by the president to represent the U.S. government before the Supreme Court.

The solicitor general, while formally a member of the executive branch, is a very important participant in Supreme Court activities. The person in this office is considered not only as an officer of the executive branch but also as an officer of the Court. The solicitor general is one of only two government officials who have responsibilities in two branches. Therefore, although the solicitor general is a member of the Justice Department, he or she also has chambers at the Court. In fact, the solicitor general is often given the informal title of “tenth justice.” Several solicitor generals, including William H. Taft, Stanley F. Reed, Robert H. Jackson, and Thurgood Marshall, later became members of the Court.

The Solicitor General’s Role

The office of solicitor general was created by Congress in 1870, as part of its effort to provide “a staff of law officers sufficiently numerous and of sufficient ability to transact this law business of Government in all parts of the United States.” Before the creation of this office, the duties fulfilled by the solicitor general were carried out by the attorney general. The solicitor general is the only officer of the federal government required by law to be “of sufficient learning, ability, and experience” in the practice of law.

The solicitor general is the chief courtroom lawyer of the executive branch. With a staff of two dozen attorneys, the solicitor general petitions for hearings, prepares briefs and supporting data, and argues the government’s case before the Court. These arguments are usually presented by a member of the solicitor general’s staff. Particularly important cases (maybe six or seven times a term) will be argued by the solicitor general. By tradition, when presenting oral arguments to the Court, members of the solicitor general’s office wear charcoal gray morning coats.

Probably the most important function of the solicitor general is to decide which of the many cases involving the federal government and issues of importance to it are appealed to the Court. This is particularly important because 70 percent to 80 percent of the certiorari petitions presented by the solicitor general are granted, versus 2 percent to 3 percent of all others. Therefore, for every petition for a writ of certiorari presented by the solicitor general, five requests from federal agencies are rejected.

A very special relationship exists between the Court and the solicitor general. The Court will often seek out assistance from the solicitor general, even in cases in which the federal government is not involved. The solicitor general is regularly invited by the Court to submit briefs in such cases. In addition, the solicitor general is the only officer of the Court submitting amicus curiae briefs who is regularly given time to argue before the Court. Finally, when a member of the Court passes away, it is the solicitor general who calls for a meeting of the Court bar to honor him or her.

Success and Sources of Influence

Not only does the solicitor general enjoy a great deal of success in getting the Court to hear cases, but these cases are very often decided in the government’s favor. By one count of cases in which the solicitor general was involved, either directly or through amicus briefs, the federal government won 70 percent of the time. The solicitor general participates in about two-thirds of all the cases fully considered by the Court and is an extremely powerful actor before it.

This influence arises largely because of the very close relationship between the solicitor general and the Court. Given the sheer volume of solicitor general involvement, it is not surprising that the solicitor general is well known and respected by members of the Court. They assume that the solicitor general argues cases before the Court only if the merits are very strong. Given the large pool of cases brought to the solicitor general’s office by the various agencies, the solicitor general is free to choose only those cases that are most likely to be successful.

In addition, the solicitor general’s office brings important strengths to the relationship. The solicitor general, unlike virtually anyone else who appears before the Court, has an intimate knowledge of the members based on lengthy interaction. Furthermore, the Court will often defer to the judgment of the solicitor general, who is the official legal voice of the federal government. The Court is also likely to place the interests of the nation, as expressed by the solicitor general, above other interests.

Although the unique role of the solicitor general before the Court is widely acknowledged, there is not complete consensus on what that role should be. It has historically been assumed that the solicitor general would be above partisanship, but some presidents have attempted to use the office of solicitor general to achieve narrow partisan goals. President Ronald Reagan, for example, pushed his first solicitor general, Rex Lee, to convince Court members to change their views on a number of major social issues, such as abortion, affirmative action, and school prayer. In general, however, solicitor generals attempted to act much more as the legal conscience of the government than as partisan spokespeople for the administration. This is probably the most fundamental explanation for the success of the solicitor general before the Court.

Further Reading
  • Caplan, Lincoln. The Tenth Justice: The Solicitor General and the Rule of Law. New York: Vintage Books, 1987.
  • Salokar, Rebecca Mae. The Solicitor General: The Politics of Law. Philadelphia: Temple University Press, 1992.
  • Ubertaccio, Peter N. Learned in the Law and Politics: The Office of the Solicitor General and Executive Power. New York: LFB Scholarly Publications, 2005.

Bork, Robert H.

Briefs

Certiorari, writ of

Davis, John W.

Hughes, Charles Evans

Jackson, Robert H.

Marshall, Thurgood

Reed, Stanley F.

Taft, William H.

Categories: History Content