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Solicitor General of the United States

The Solicitor General of the United States is the fourth-highest-ranking official in the United States Department of Justice. The current Solicitor General, Noel Francisco, took office on September 19, 2017.[1]

Solicitor General of the United States
Flag of the United States Solicitor General.svg
Flag of the United States Solicitor General
Noel Francisco official photo (cropped).jpg
Incumbent
Noel Francisco

since September 19, 2017
United States Department of Justice
StyleMr. Solicitor General
Reports toUnited States Attorney General
SeatSupreme Court Building and Department of Justice Headquarters
AppointerThe President
with Senate advice and consent
Constituting instrument28 U.S.C. § 505
FormationOctober 1870
First holderBenjamin Bristow
DeputyPrincipal Deputy Solicitor General
Websitewww.usdoj.gov
Organization of the office of the Solicitor General

The United States Solicitor General represents the federal government of the United States before the Supreme Court of the United States. 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 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.

Contents

Composition of the Office of the Solicitor GeneralEdit

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. Other cases 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.[2]

SignificanceEdit

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. As a result, the Solicitor General tends to remain particularly comfortable during oral arguments that other advocates would find intimidating.[citation needed] 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.[4]

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. 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.

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 GeneralEdit

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).[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 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]

TraditionsEdit

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,[11] although Elena Kagan, the only woman to hold the office, elected to forgo the practice.[12]

During oral argument, the members of the Court often address the Solicitor General as "General."[13][14]

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.[15]

List of Solicitors GeneralEdit

Picture Solicitor General Date of service Appointing 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 Teddy 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 October 23, 1985 – January 20, 1989
Acting: June 1, 1985 – October 23, 1985
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 June 13, 2005 – June 2, 2008
Acting: July 13, 2004 – June 13, 2005
  Gregory Garre October 2, 2008 – January 20, 2009
Acting: June 2, 2008 – October 2, 2008
  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 – 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 GeneralEdit

NotesEdit

  1. ^ "Senate confirms Oswego native Noel Francisco as Trump's solicitor general". The Post Standard. September 25, 2017. Retrieved September 25, 2017.
  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. ^ https://www.washingtonpost.com/wp-dyn/content/article/2010/05/12/AR2010051205049.html RET. Dec. 27 2017 14:07 CST
  6. ^ Waxman, Seth (June 1, 1998). "'Presenting the Case of the United States As It Should Be': The Solicitor General in Historical Context". Address to the Supreme Court Historical Society. 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. ^ a b c McElroy, Lisa (February 10, 2010). ""CVSG"s in plain English". ScotusBlog. Retrieved January 13, 2015.
  9. ^ a b c 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. 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. ^ Suter, William. "Clerk of the U.S. Supreme Court". U.S. Supreme Court Week (Interview). C-SPAN.
  12. ^ Toobin, Jeffrey. "Money Unlimited, How Chief Justice John Roberts Orchestrated the Citizens United Decision". The New Yorker. Retrieved May 16, 2012.
  13. ^ "General relativity". Grammarphobia. May 20, 2012.
  14. ^ Herz, Michael (Spring 2003). "Generals, Generals Everywhere".
  15. ^ 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).
  16. ^ https://web.archive.org/web/20060130190201/http://leahy.senate.gov/DOX/SC/RobertsAnswersQuestionnairepp1-25part1.pdf
  17. ^ Biographies of Current Justices of the Supreme Court.
  18. ^ Stephanie Woodrow, Ex-Prosecutor to Join New York Attorney General's Office, Main Justice, December 23, 2010.
  19. ^ S. Hrg. 109-46
  20. ^ U.S. Department of Justice, Paul Clement to Serve As Acting Solicitor General, July 12, 2004.
  21. ^ Tom Goldstein, Neal Katyal to be Principal Deputy Solicitor General, SCOTUSblog, January 17, 2009.
  22. ^ Brent Kendall, Feds Prevail in Spat with Former Acting Solicitor General, Wall Street Journal, May 20, 2012
  23. ^ Ashby Jones, DOJ Taps 34-Year-Old for High-Ranking Position in SG's Office, Wall Street Journal, August 10, 2010
  24. ^ Tony Mauro, Surprise Appointment in SG's Office, The BLT: The Blog of the Legal Times, August 10, 2010.
  25. ^ U.S. Department of Justice, Solicitor General Donald B. Verrilli Appoints Sri Srinivasan as Principal Deputy Solicitor General, August 26, 2011.
  26. ^ Sri Srinivasan, U.S. Court of Appeals for the District of Columbia Circuit
  27. ^ Tom Goldstein, The new Principal Deputy Solicitor General, SCOTUSblog, August 9, 2013.
  28. ^ Tony Mauro, Gershengorn Named Principal Deputy Solicitor General, The BLT: The Blog of the Legal Times, August 12, 2013

ReferencesEdit

  • 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 linksEdit