Solicitor General of the United States

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United States Solicitor General
Flag of the United States Solicitor General.svg
Flag of the United States Solicitor General
Incumbent
Ian Gershengorn
Acting

since June 25, 2016
Department of Justice
Office of the Solicitor General
Reports to The Attorney General
Appointer The President
with Senate advice and consent
Constituting instrument 28 U.S.C. § 505
Formation October 1870
Prior to this date,
the Attorney General exercised
most of the duties now performed
by the Solicitor General.
First holder Benjamin H. Bristow
Website Office of the Solicitor General
Organization of the office of the Solicitor General

The United States Solicitor General is the third-highest-ranking official (co-equal in ranking with the United States Associate Attorney General) in the U.S. Department of Justice. 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 (acting), Ian Gershengorn, took office on June 25, 2016.[1][2] 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[edit]

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 Ian Heath Gershengorn, who succeeded Sri Srinivasan, who left after being confirmed as a United States Circuit Judge for the United States Court of Appeals for the District of Columbia Circuit.[3] 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. 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.[4]

Significance[edit]

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 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. 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 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 G. Roberts, Jr. 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. 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."[7] 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[edit]

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).[8] 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.[9]

Although the CVSG is technically an invitation, the Solicitor General's office treats it as tantamount to a command.[9] 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."[10][11]

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.[10] 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.[10]

Although there is 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.[9]

Traditions[edit]

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,[12] although Elena Kagan, the first woman to hold the office, elected to forgo the practice.[13]

During oral argument, the members of the Court often address the Solicitor General as "General."[14][15]

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.[16]

List of Solicitors General[edit]

Picture Solicitor General Date of Service Appointing President
Benjamin Helm Bristow, Brady-Handy bw photo portrait, ca 1870-1880.jpg Benjamin Bristow October 1870 – November 1872 Ulysses Grant
Samuel F. Phillips.jpg Samuel Phillips November 1872 – May 1885
John Goode - Brady-Handy.jpg John Goode May 1885 – August 1886 Grover Cleveland
George A. Jenks.jpg George Jenks July 1886 – May 1889
Orlow W. Chapman.jpg Orlow Chapman May 1889 – January 1890 Benjamin Harrison
William Howard Taft, Bain bw photo portrait, 1908.jpg William Taft February 1890 – March 1892
Charles H. Aldrich.jpeg Charles Aldrich March 1892 – May 1893
Lawrence Maxwell Jr.jpeg Lawrence Maxwell April 1893 – January 1895 Grover Cleveland
Holmes Conrad.jpg Holmes Conrad February 1895 – July 1897
Richards-large.jpg John Richards July 1897 – March 1903 William McKinley
Hoyt-large.jpg Henry Hoyt February 1903 – March 1909 Teddy Roosevelt
Bowers-large.jpg Lloyd Bowers April 1909 – September 1910 William Taft
FWLehman.jpg Frederick Lehmann December 1910 – July 1912
Bullitt-large.jpg William Bullitt July 1912 – March 1913
John William Davis.jpg John Davis August 29, 1913 – November 21, 1918 Woodrow Wilson
Alexander Campbell King by Gari Milchers (1922).jpg Alexander King November 21, 1918 – May 24, 1920
William L. Frierson DOJ photo.jpg William Frierson June 1920 – June 1921
James M Beck.jpg James Beck June 1921 – June 1925 Warren Harding
William D. Mitchell cph.3b30394.jpg William Mitchell June 4, 1925 – March 4, 1929 Calvin Coolidge
Charles Evans Hughes jr.jpg Charles Hughes May 1929 – April 1930 Herbert Hoover
Thomas D Thatcher.jpg Thomas Thacher March 1930 – May 1933
James crawford biggs.jpg James Biggs May 1933 – March 1935 Franklin Roosevelt
Stanley Forman Reed.jpg Stanley Reed March 1935 – January 27, 1938
Roberthjackson.jpg Robert Jackson March 1938 – January 18, 1940
Francis Biddle cph.3b27524.jpg Francis Biddle January 22, 1940 – August 25, 1941
Charles Fahy - Project Gutenberg etext 20587.jpg Charles Fahy November 1, 1941 – September 1945
J. Howard McGrath.jpg Howard McGrath October 1945 – October 1946 Harry Truman
Philip B. Perlman (2005).jpg Philip Perlman July 1947 – August 1952
Cummings-large.jpg Walter Cummings December 1952 – March 1953
Sobeloff.jpg Simon Sobeloff February 1954 – July 1956 Dwight Eisenhower
J. Lee Rankin.jpg Lee Rankin August 1956 – January 1961
ArchibaldCox.jpg Archibald Cox January 1961 – July 1965 John F. Kennedy
Thurgoodmarshall1967.jpg Thurgood Marshall August 23, 1965 – August 30, 1967 Lyndon Johnson
Griswolderwin.jpg Erwin Griswold October 1967 – March 21, 1973[17]
Robert Bork.jpg Robert Bork March 21, 1973 – January 20, 1977[17] Richard Nixon
Daniel Mortimer Friedman CAFC portrait.jpg Daniel Friedman
Acting
January 20, 1977 – March 28, 1977 Jimmy Carter
Wademccree.jpg Wade McCree March 28, 1977 – January 20, 1981
Rex Lee-large.jpg Rex Lee August 1981 – June 1985 Ronald Reagan
Charles Fried.jpg Charles Fried October 1985 – January 20, 1989
Kenneth W. Starr.jpg Ken Starr May 26, 1989 – January 20, 1993 George H. W. Bush
Drew S. Days, III.jpg Drew Days May 1993 – July 1996 Bill Clinton
Walter E. Dellinger III.jpg Walter Dellinger
Acting
August 1996 – October 1997
Waxman.jpg Seth Waxman November 1997 – January 2001
No image.svg Barbara Underwood
Acting
January 20, 2001 – June 11, 2001 George W. Bush
Theodore Olson.jpg Ted Olson June 11, 2001 – July 10, 2004
Paul D. Clement.jpg Paul Clement July 11, 2004 – June 19, 2008
Acting: July 11, 2004 – June 13, 2005
Gregory G. Garre.jpg Gregory Garre June 19, 2008 – January 16, 2009
Acting: June 19, 2008 – October 2, 2008
Edwin Kneedler.jpg Edwin Kneedler
Acting
January 16, 2009 – March 19, 2009 Barack Obama
Elena Kagan SCOTUS portrait.jpg Elena Kagan March 19, 2009 – May 17, 2010
Neal Katyal portrait.jpg Neal Katyal
Acting
May 17, 2010 – June 9, 2011
Donald Verrilli -DOJ Portrait-.jpg Don Verrilli June 9, 2011 – June 25, 2016
Official-gershengorn.jpg Ian Gershengorn
Acting
June 25, 2016 – present

List of notable Principal Deputy Solicitors General[edit]

Notes[edit]

  1. ^ Mauro, Tony (June 10, 2011). "Verrilli Sworn In as Solicitor General". The Blog of Legal Times. 
  2. ^ Abrams, Jim (June 6, 2011). "Senate Confirms Obama lawyer as Solicitor General". Seattle Times. Retrieved June 6, 2011. 
  3. ^ Obama, Barack (June 4, 2013). Remarks by the President on the Nominations to the U.S. Court of Appeals for the District of Columbia Circuit (Speech). Office of the Press Secretary, The White House. 
  4. ^ Bhatia, Kedar S. (April 17, 2011). "Updated Advocate Scorecard (OT00-10)". Daily Writ. 
  5. ^ Caplan, Lincoln (1987). The Tenth Justice: The Solicitor General and the Rule of Law. New York: Knopf. [page needed]
  6. ^ 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 1377522Freely accessible. 
  7. ^ 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. 
  8. ^ Black, Ryan C.; Owens, Ryan J. (Apr 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. 
  9. ^ a b c McElroy, Lisa (February 10, 2010). ""CVSG"s in plain English". ScotusBlog. Retrieved January 13, 2015. 
  10. ^ 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. Retrieved January 14, 2015. 
  11. ^ 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. 
  12. ^ Suter, William. "Clerk of the U.S. Supreme Court". U.S. Supreme Court Week (Interview). C-SPAN. 
  13. ^ Toobin, Jeffrey. "Money Unlimited, How Chief Justice John Roberts Orchestrated the Citizens United Decision". The New Yorker. Retrieved May 16, 2012. 
  14. ^ "General relativity". Grammarphobia. May 20, 2012. 
  15. ^ Herz, Michael (Spring 2003). "Generals, Generals Everywhere". 
  16. ^ 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).
  17. ^ a b "Nixon's Men: All Work and No Frills". The New York Times. March 21, 1973. p. 47. 
  18. ^ Biographies of Current Justices of the Supreme Court.
  19. ^ Stephanie Woodrow, Ex-Prosecutor to Join New York Attorney General's Office, Main Justice, Dec. 23, 2010.
  20. ^ S. Hrg. 109-46
  21. ^ U.S. Department of Justice, Paul Clement to Serve As Acting Solicitor General, July 12, 2004.
  22. ^ Tom Goldstein, Neal Katyal to be Principal Deputy Solicitor General, SCOTUSblog, January 17, 2009.
  23. ^ Brent Kendall, Feds Prevail in Spat with Former Acting Solicitor General, Wall Street Journal, May 20, 2012
  24. ^ Ashby Jones, DOJ Taps 34-Year-Old for High-Ranking Position in SG's Office, Wall Street Journal, August 10, 2010
  25. ^ Tony Mauro, Surprise Appointment in SG's Office, The BLT: The Blog of the Legal Times, Aug. 10, 2010.
  26. ^ U.S. Department of Justice, Solicitor General Donald B. Verrilli Appoints Sri Srinivasan as Principal Deputy Solicitor General, Aug. 26, 2011.
  27. ^ Sri Srinivasan, U.S. Court of Appeals for the District of Columbia Circuit
  28. ^ Tom Goldstein, The new Principal Deputy Solicitor General, SCOTUSblog, Aug. 9, 2013.
  29. ^ Tony Mauro, Gershengorn Named Principal Deputy Solicitor General, The BLT: The Blog of the Legal Times, Aug. 12, 2013

References[edit]

  • 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. 

External links[edit]