Girish Mahajan (Editor)

Solicitor General of the United States

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Covid-19
Reports to  The Attorney General
First holder  Benjamin H. Bristow
Constituting instrument  28 U.S.C. § 505
Solicitor General of the United States
Appointer  The President with Senate advice and consent
Formation  October 1870 Prior to this date, the Attorney General exercised most of the duties now performed by the Solicitor General.
Website  Office of the Solicitor General

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 Acting Solicitor General, Jeffrey Wall, took office on March 10, 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.

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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 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.

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" 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.

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 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.

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, although Elena Kagan, the only woman to hold the office, elected to forgo the practice.

During oral argument, the members of the Court often address the Solicitor General as "General."

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.

List of notable Principal Deputy Solicitors General

  • Donald B. Ayer: June 1986 to December 1988
  • John G. Roberts: 1989–1993
  • Paul Bender: 1993–1996
  • Seth Waxman: 1996–1997
  • Barbara D. Underwood: March 1997 to January 2001 (acting SG from January to June 2001)
  • Paul D. Clement – 2001 to July 2004 (became acting SG)
  • Neal Katyal: January 2009 to May 2010 (became acting SG)
  • Leondra Kruger: acting principal deputy SG named in August 2010
  • Sri Srinivasan: August 2011 to May 2013
  • Ian Gershengorn – September 2013 to June 2016 (became Acting SG)
  • References

    Solicitor General of the United States Wikipedia


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