Solicitor General of the United States

"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
Flag of the United States Solicitor General
Incumbent Elizabeth Prelogar since October 28, 2021
Department of Justice
Style	Mr. or Madam Solicitor General
Reports to	Attorney General
Seat	Supreme Court Building and Department of Justice Headquarters
Appointer	The President with Senate advice and consent
Constituting instrument	28 U.S.C.   § 505
Formation	October 1870
First holder	Benjamin Bristow
Deputy	Principal Deputy Solicitor General
Website	justice.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 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 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

 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

• Paul M. Bator – October 1982 to December 1983
• Donald B. Ayer – June 1986 to December 1988
• John Roberts – October 1989 to January 1993 ^{[18] [19]} (became Chief Justice)
• Paul Bender – 1993 to 1996
• Seth Waxman – 1996 to November 13, 1997 (became Solicitor General)
• Barbara Underwood – March 23, 1998 to June 11, 2001 (acting SG from January to June 2001) ^[20]
• Paul D. Clement – February 2001 to July 11, 2004 (became acting SG) ^{[21] [22]}
• Gregory G. Garre – September 2005 - June 19, 2008 (became acting SG)
• Neal Katyal – February 3, 2009 to May 17, 2010 (became acting SG) ^{[23] [24]}
• Leondra Kruger – acting principal deputy SG named on May 17, 2010, to June 9, 2011 (became California Supreme Court Associate Justice) ^{[25] [26]}
• Neal Katyal – June 9, 2011 to August 26, 2011
• Sri Srinivasan – August 26, 2011 to May 24, 2013 (became Chief Judge of D.C. Circuit) ^{[27] [28]}
• Ian Gershengorn – September 2013 to June 25, 2016 (became Acting SG) ^{[29] [30]}
• Noel Francisco – January 20, 2017 to March 10, 2017 (became SG)
• Jeff Wall – March 10, 2017 to January 20, 2021 (became Acting SG) ^{[31] [32]}
• Elizabeth Prelogar – January 20, 2021 - October 28, 2021 (became SG)
• Brian Fletcher - October 28, 2021 – Present (became Acting SG)

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. McElroy, Lisa (February 10, 2010). ""CVSG"s in plain English". ScotusBlog. Retrieved January 13, 2015.
9. 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.
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.

External links

• Official website
• Solicitor General Supreme Court briefs