Solicitor General of the United States

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Solicitor General of the United States
Flag of the United States Solicitor General.svg
Flag of the United States solicitor general
Elizabeth Barchas Prelogar, Solicitor General.png
since October 28, 2021
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
AppointerThe President
with Senate advice and consent
Constituting instrument 28 U.S.C.   § 505
FormationOctober 1870
First holder Benjamin Bristow
Deputy Principal Deputy Solicitor General
Website justice.gov/osg
Organizational chart for the office of the Solicitor General Osg-org-chart.png
Organizational chart for the office of the Solicitor General

The solicitor general of the United States (USSG or SG), is 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.

Contents

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

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 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

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.[ 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

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

ImageNameStartEndPresident(s)
Benjamin Helm Bristow, Brady-Handy bw photo portrait, ca 1870-1880.jpg Benjamin Bristow October 11, 1870November 15, 1872 Ulysses Grant
(1869–1877)
Samuel F. Phillips.jpg Samuel Phillips December 11, 1872May 1, 1885
Rutherford Hayes
(1877–1881)
James Garfield
(1881)
Chester Arthur
(1881–1885)
Grover Cleveland
(1885–1889)
John Goode - Brady-Handy.jpg John Goode May 1, 1885August 5, 1886
George A. Jenks.jpg George Jenks July 30, 1886May 29, 1889
Orlow W. Chapman.jpg Orlow Chapman May 29, 1889January 19, 1890 Benjamin Harrison
(1889–1893)
William Howard Taft, Bain bw photo portrait, 1908.jpg William Taft February 4, 1890March 20, 1892
Charles H. Aldrich.jpeg Charles Aldrich March 21, 1892May 28, 1893
Lawrence Maxwell Jr.jpeg Lawrence Maxwell April 6, 1893January 30, 1895 Grover Cleveland
(1893–1897)
Holmes Conrad.jpg Holmes Conrad February 6, 1895July 1, 1897
Richards-large.jpg John Richards July 6, 1897March 16, 1903 William McKinley
(1897–1901)
Hoyt-large.jpg Henry Hoyt February 25, 1903March 31, 1909 Theodore Roosevelt
(1901–1909)
Bowers-large.jpg Lloyd Bowers April 1, 1909September 9, 1910 William Taft
(1909–1913)
FWLehman.jpg Frederick Lehmann December 12, 1910July 15, 1912
Bullitt-large.jpg William Bullitt July 16, 1912March 11, 1913
John William Davis.jpg John Davis August 30, 1913November 26, 1918 Woodrow Wilson
(1913–1921)
Alexander Campbell King by Gari Milchers (1922).jpg Alexander King November 27, 1918May 23, 1920
William L. Frierson DOJ photo.jpg William Frierson June 1, 1920June 30, 1921
James M Beck.jpg James Beck June 1, 1921May 11, 1925 Warren Harding
(1921–1923)
William D. Mitchell cph.3b30394.jpg William Mitchell June 4, 1925March 5, 1929 Calvin Coolidge
(1923–1929)
Charles Evans Hughes jr.jpg Charles Hughes May 27, 1929April 16, 1930 Herbert Hoover
(1929–1933)
Thomas D Thatcher.jpg Thomas Thacher March 22, 1930May 4, 1933
James crawford biggs.jpg James Biggs May 5, 1933March 24, 1935 Franklin Roosevelt
(1933–1945)
Stanley Forman Reed.jpg Stanley Reed March 25, 1935January 30, 1938
Roberthjackson.jpg Robert Jackson March 5, 1938January 17, 1940
Francis Biddle cph.3b27524.jpg Francis Biddle January 22, 1940September 4, 1941
Charles Fahy - Project Gutenberg etext 20587.jpg Charles Fahy November 15, 1941September 27, 1945
J. Howard McGrath.jpg Howard McGrath October 4, 1945October 7, 1946 Harry Truman
(1945–1953)
Philip B. Perlman (2005).jpg Philip Perlman July 30, 1947August 15, 1952
Cummings-large.jpg Walter Cummings December 2, 1952March 1, 1953
Sobeloff.jpg Simon Sobeloff February 10, 1954July 19, 1956 Dwight Eisenhower
(1953–1961)
J. Lee Rankin.jpg Lee Rankin August 4, 1956January 23, 1961
ArchibaldCox.jpg Archibald Cox January 24, 1961July 31, 1965 John F. Kennedy
(1961–1963)
Thurgoodmarshall1967.jpg Thurgood Marshall August 11, 1965August 30, 1967 Lyndon Johnson
(1963–1969)
Griswolderwin.jpg Erwin Griswold October 12, 1967June 25, 1973
Robert Bork.jpg Robert Bork June 27, 1973January 20, 1977 Richard Nixon
(1969–1974)
Gerald Ford
(1974–1977)
Daniel Mortimer Friedman CAFC portrait.jpg Daniel Friedman
Acting
January 20, 1977March 4, 1977 Jimmy Carter
(1977–1981)
Wademccree.jpg Wade McCree March 4, 1977January 20, 1981
Rex Lee-large.jpg Rex Lee August 6, 1981June 1, 1985 Ronald Reagan
(1981–1989)
Charles Fried.jpg Charles Fried June 1, 1985
Acting: June 1, 1985 – October 23, 1985
January 20, 1989
William Curtis Bryson (cropped).jpg William Bryson
Acting
January 20, 1989May 27, 1989 George H. W. Bush
(1989–1993)
Kenneth W. Starr.jpg Ken Starr May 27, 1989January 20, 1993
William Curtis Bryson (cropped).jpg William Bryson
Acting
January 20, 1993June 7, 1993 Bill Clinton
(1993–2001)
Drew S. Days, III.jpg Drew Days June 7, 1993June 28, 1996
Walter E. Dellinger III.jpg Walter Dellinger
Acting
June 28, 1996November 7, 1997
Waxman.jpg Seth Waxman November 7, 1997January 20, 2001
No image.svg Barbara Underwood
Acting
January 20, 2001June 13, 2001 George W. Bush
(2001–2009)
Theodore Olson.jpg Ted Olson June 13, 2001July 13, 2004
Paul D. Clement.jpg Paul Clement July 13, 2004
Acting: July 13, 2004 – June 13, 2005
June 2, 2008
Gregory G. Garre.jpg Gregory Garre June 2, 2008
Acting: June 2, 2008 – October 2, 2008
January 20, 2009
Edwin Kneedler.jpg Edwin Kneedler
Acting
January 20, 2009March 20, 2009 Barack Obama
(2009–2017)
Elena Kagan Official SCOTUS Portrait (2013) (3x4 cropped).jpg Elena Kagan March 20, 2009May 17, 2010
Neal Katyal portrait.jpg Neal Katyal
Acting
May 17, 2010June 9, 2011
Donald Verrilli (3x4 cropped).jpg Don Verrilli June 9, 2011June 25, 2016
Official-gershengorn.jpg Ian Gershengorn
Acting
June 25, 2016January 20, 2017
Noel Francisco official photo (cropped).jpg Noel Francisco
Acting
January 20, 2017March 10, 2017 Donald Trump
(2017–2021)
No image.svg Jeff Wall
Acting
March 10, 2017September 19, 2017
Noel Francisco official photo (cropped).jpg Noel Francisco September 19, 2017July 3, 2020
No image.svg Jeff Wall
Acting
July 3, 2020January 20, 2021
Elizabeth Barchas Prelogar, Solicitor General (3x4 cropped).png Elizabeth Prelogar
Acting
January 20, 2021August 11, 2021 Joe Biden
(2021–2025)
No image.svg Brian Fletcher
Acting
August 11, 2021October 28, 2021
Elizabeth Barchas Prelogar, Solicitor General (3x4 cropped).png Elizabeth Prelogar October 28, 2021present
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.[ page needed ]
  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.

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References