Organization of the office of the Solicitor General 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 Solicitor General, Donald B. Verrilli, Jr. was confirmed by the United States Senate on June 6, 2011 and sworn in on June 9, 2011. Verrilli's predecessor on a permanent basis, Elena Kagan, was nominated to the Supreme Court and confirmed by the Senate in August 2010. Between Kagan and Verrilli's tenures, the Principal Deputy, Neal Katyal, had served as Acting Solicitor General.
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.
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 Principal Deputy currently is Sri Srinivasan. 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. Often, assistants mass more total cases than the Solicitor General.
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 relationship of mutual respect that inevitably develops 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 was 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 (and Acting SG for one case) 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.
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 first woman to hold the office, elected to forgo the practice. On at least one occasion, there was concern that the manner in which advocates before the Court dress might have an effect on the decision. For example, when Leon Jaworski argued for the disclosure of Richard Nixon's tapes during the Watergate crisis, he wished to convey the impression that he was acting on behalf of the Government, and thus, by tradition, should have worn a morning coat. At the same time, Jaworski believed that such attire made him look like a penguin and slightly ridiculous. After discreet inquiries, he learned that it would be permissible for him to appear in a business suit. During oral argument, the members of the Court often use the formal address "General". More significantly, the Solicitor General is permitted to "lodge" in the appellate record new evidence that would ordinarily not be considered by the justices.
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 Solicitors General
- Lincoln Caplan, The Tenth Justice: The Solicitor General and the Rule of Law (New York: Knopf, 1987)
Kermit Hall. The Oxford Guide to the Supreme Court of the United States
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