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United States Solicitor General

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.[1][2] Verrilli's predecessor on a permanent basis, Elena Kagan, was nominated to the Supreme Court and confirmed by the Senate in August 2010.[3] Between Kagan and Verrilli's tenures, the Principal Deputy, Neal Katyal, had served as Acting Solicitor General.[4]

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 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.

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"[5] 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.[6]

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[7]) 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."[8] 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.

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,[9] 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.[10]

List of Solicitors General

Picture Solicitor General Date of Service Appointing President
Benjamin H. Bristow October 1870 November 1872 Ulysses Grant
Samuel F. Phillips November 1872 May 1885
John Goode May 1885 August 1886 Grover Cleveland
George A. Jenks July 1886 May 1889
75px Orlow W. Chapman May 1889 January 1890 Benjamin Harrison
William Howard Taft February 1890 March 1892
Charles H. Aldrich March 1892 May 1893
Lawrence Maxwell, Jr. April 1893 January 1895 Grover Cleveland
Holmes Conrad February 1895 July 1897
John K. Richards July 1897 March 1903 William McKinley
Henry M. Hoyt February 1903 March 1909 Theodore Roosevelt
Lloyd Wheaton Bowers April 1909 September 1910 William Taft
Frederick W. Lehmann December 1910 July 1912
William Marshall Bullitt July 1912 March 1913
John W. Davis August 1913 November 1918 Woodrow Wilson
75px Alexander C. King November 1918 May 1920
75px William L. Frierson June 1920 June 1921
James M. Beck June 1921 June 1925 Warren Harding
75px William D. Mitchell June 1925 March 1929 Calvin Coolidge
Charles Evans Hughes, Jr May 1929 April 1930 Herbert Hoover
Thomas D. Thacher March 1930 May 1933
James Crawford Biggs May 1933 March 1935 Franklin Roosevelt
Stanley Reed March 1935 January 1938
Robert H. Jackson March 1938 January 1940
75px Francis Biddle January 1940 September 1941
Charles H. Fahy November 1941 September 1945
J. Howard McGrath October 1945 October 1946 Harry Truman
Philip B. Perlman July 1947 August 1952
Walter J. Cummings, Jr. December 1952 March 1953
Simon Sobeloff February 1954 July 1956 Dwight Eisenhower
J. Lee Rankin August 1956 January 1961
Archibald Cox January 1961 July 1965 John F. Kennedy
Thurgood Marshall August 1965 August 1967 Lyndon Johnson
Erwin N. Griswold October 1967 June 1973
Robert H. Bork June 1973 January 1977 Richard Nixon
Wade H. McCree March 1977 August 1981 Jimmy Carter
Rex E. Lee August 1981 June 1985 Ronald Reagan
Charles Fried October 1985 January 1989
Kenneth W. Starr May 1989 January 1993 George H. W. Bush
John Roberts (acting) 1990 for the purposes of one case when Ken Starr had a conflict[7] George H. W. Bush
Drew S. Days, III May 1993 July 1996 Bill Clinton
75px Walter E. Dellinger III (acting) August 1996 October 1997
Seth P. Waxman November 1997 January 2001
Barbara D. Underwood (acting) January 2001 June 2001 George W. Bush
Theodore B. Olson June 2001 July 2004
Paul D. Clement June 2004 June 2005 (acting)
June 2005 June 2008
Gregory G. Garre June 2008 October 2008 (acting)
October 2008 January 2009
Edwin Kneedler January 2009 March 2009 (acting) Barack Obama
Elena Kagan March 2009 May 2010
Neal Katyal May 2010 June 2011 (acting)
Donald Verrilli Jr. June 2011 present

Notes

References

  • 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

External links

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