Solicitor General of the United States

Solicitor General of the United States
Flag of the United States Solicitor General.svg
Flag of the United States Solicitor General
Elizabeth Barchas Prelogar, Solicitor General.png
Incumbent
Elizabeth Prelogar

since October 28, 2021
United States Department of Justice
StyleMr. or Madam 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 solicitor general of the United States is the fourth-highest-ranking official in the United States Department of Justice. Elizabeth Prelogar has been serving in the role since October 28, 2021.

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.

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.

The solicitor general of the United States is subservient to, and directly reports to, the United States Attorney General.

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.[1]

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"[2] 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 remarkable given that only 75 to 125 of the over 7,500 petitions submitted each term are granted review by the Court.[3]

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.[4] 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."[5] 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).[6] 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.[7]

Although the CVSG is technically an invitation, the solicitor general's office treats it as tantamount to a command.[7] 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."[8][9]

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.[8] 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.[8]

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.[7]

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,[10] although Elena Kagan, the first woman to hold the office on other than an acting basis, elected to forgo the practice.[11]

During oral argument, the members of the Court often address the solicitor general as "General." Some legal commentators have disagreed with this usage, saying that "general" is a postpositive adjective (which modifies the noun "solicitor"), and is not a title itself.[12]

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.[13]

List of solicitors general

PictureSolicitor GeneralDate of serviceAppointing President
Benjamin Helm Bristow, Brady-Handy bw photo portrait, ca 1870-1880.jpgBenjamin BristowOctober 11, 1870 – November 15, 1872Ulysses Grant
Samuel F. Phillips.jpgSamuel PhillipsDecember 11, 1872 – May 1, 1885
John Goode - Brady-Handy.jpgJohn GoodeMay 1, 1885 – August 5, 1886Grover Cleveland
George A. Jenks.jpgGeorge JenksJuly 30, 1886 – May 29, 1889
Orlow W. Chapman.jpgOrlow ChapmanMay 29, 1889 – January 19, 1890Benjamin Harrison
William Howard Taft, Bain bw photo portrait, 1908.jpgWilliam TaftFebruary 4, 1890 – March 20, 1892
Charles H. Aldrich.jpegCharles AldrichMarch 21, 1892 – May 28, 1893
Lawrence Maxwell Jr.jpegLawrence MaxwellApril 6, 1893 – January 30, 1895Grover Cleveland
Holmes Conrad.jpgHolmes ConradFebruary 6, 1895 – July 1, 1897
Richards-large.jpgJohn RichardsJuly 6, 1897 – March 16, 1903William McKinley
Hoyt-large.jpgHenry HoytFebruary 25, 1903 – March 31, 1909Teddy Roosevelt
Bowers-large.jpgLloyd BowersApril 1, 1909 – September 9, 1910William Taft
FWLehman.jpgFrederick LehmannDecember 12, 1910 – July 15, 1912
Bullitt-large.jpgWilliam BullittJuly 16, 1912 – March 11, 1913
John William Davis.jpgJohn DavisAugust 30, 1913 – November 26, 1918Woodrow Wilson
Alexander Campbell King by Gari Milchers (1922).jpgAlexander KingNovember 27, 1918 – May 23, 1920
William L. Frierson DOJ photo.jpgWilliam FriersonJune 1, 1920 – June 30, 1921
James M Beck.jpgJames BeckJune 1, 1921 – May 11, 1925Warren Harding
William D. Mitchell cph.3b30394.jpgWilliam MitchellJune 4, 1925 – March 5, 1929Calvin Coolidge
Charles Evans Hughes jr.jpgCharles HughesMay 27, 1929 – April 16, 1930Herbert Hoover
Thomas D Thatcher.jpgThomas ThacherMarch 22, 1930 – May 4, 1933
James crawford biggs.jpgJames BiggsMay 5, 1933 – March 24, 1935Franklin Roosevelt
Stanley Forman Reed.jpgStanley ReedMarch 25, 1935 – January 30, 1938
Roberthjackson.jpgRobert JacksonMarch 5, 1938 – January 17, 1940
Francis Biddle cph.3b27524.jpgFrancis BiddleJanuary 22, 1940 – September 4, 1941
Charles Fahy - Project Gutenberg etext 20587.jpgCharles FahyNovember 15, 1941 – September 27, 1945
J. Howard McGrath.jpgHoward McGrathOctober 4, 1945 – October 7, 1946Harry Truman
Philip B. Perlman (2005).jpgPhilip PerlmanJuly 30, 1947 – August 15, 1952
Cummings-large.jpgWalter CummingsDecember 2, 1952 – March 1, 1953
Sobeloff.jpgSimon SobeloffFebruary 10, 1954 – July 19, 1956Dwight Eisenhower
J. Lee Rankin.jpgLee RankinAugust 4, 1956 – January 23, 1961
ArchibaldCox.jpgArchibald CoxJanuary 24, 1961 – July 31, 1965John F. Kennedy
Thurgoodmarshall1967.jpgThurgood MarshallAugust 11, 1965 – August 30, 1967Lyndon Johnson
Griswolderwin.jpgErwin GriswoldOctober 12, 1967 – June 25, 1973
Robert Bork.jpgRobert BorkJune 27, 1973 – January 20, 1977Richard Nixon
Gerald Ford
Daniel Mortimer Friedman CAFC portrait.jpgDaniel Friedman
Acting
January 20, 1977 – March 4, 1977Jimmy Carter
Wademccree.jpgWade McCreeMarch 4, 1977 – January 20, 1981
Rex Lee-large.jpgRex LeeAugust 6, 1981 – June 1, 1985Ronald Reagan
Charles Fried.jpgCharles FriedOctober 23, 1985 – January 20, 1989
Acting: June 1, 1985 – October 23, 1985
William Bryson
Acting
January 20, 1989 – May 27, 1989George H. W. Bush
Kenneth W. Starr.jpgKen StarrMay 27, 1989 – January 20, 1993
William Bryson
Acting
January 20, 1993 – June 7, 1993Bill Clinton
Drew S. Days, III.jpgDrew DaysJune 7, 1993 – June 28, 1996
Walter E. Dellinger III.jpgWalter Dellinger
Acting
June 28, 1996 – November 7, 1997
Waxman.jpgSeth WaxmanNovember 7, 1997 – January 20, 2001
No image.svgBarbara Underwood
Acting
January 20, 2001 – June 13, 2001George W. Bush
Theodore Olson.jpgTed OlsonJune 13, 2001 – July 13, 2004
Paul D. Clement.jpgPaul ClementJune 13, 2005 – June 2, 2008
Acting: July 13, 2004 – June 13, 2005
Gregory G. Garre.jpgGregory GarreOctober 2, 2008 – January 20, 2009
Acting: June 2, 2008 – October 2, 2008
Edwin Kneedler.jpgEdwin Kneedler
Acting
January 20, 2009 – March 20, 2009Barack Obama
Elena Kagan SCOTUS portrait.jpgElena KaganMarch 20, 2009 – May 17, 2010
Neal Katyal portrait.jpgNeal Katyal
Acting
May 17, 2010 – June 9, 2011
Donald Verrilli -DOJ Portrait-.jpgDon VerrilliJune 9, 2011 – June 25, 2016
Official-gershengorn.jpgIan Gershengorn
Acting
June 25, 2016 – January 20, 2017
Noel Francisco official photo (cropped).jpgNoel Francisco
Acting
January 20, 2017 – March 10, 2017Donald Trump
No image.svgJeff Wall
Acting
March 10, 2017 – September 19, 2017
Noel Francisco official photo (cropped).jpgNoel FranciscoSeptember 19, 2017 – July 3, 2020
No image.svgJeff Wall
Acting
July 3, 2020 – January 20, 2021
Elizabeth Barchas Prelogar, Solicitor General.pngElizabeth Prelogar
Acting
January 20, 2021 – August 11, 2021Joe Biden
No image.svgBrian Fletcher
Acting
August 11, 2021 – October 28, 2021
Elizabeth Barchas Prelogar, Solicitor General.pngElizabeth PrelogarOctober 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 – 1982 to 1983
  • Donald B. Ayer – June 1986 to December 1988
  • John Roberts – October 1989–January 1993[14][15] (became Chief Justice)
  • Paul Bender – 1993–1996
  • Seth Waxman – 1996–1997 (became Solicitor General)
  • Barbara Underwood – March 1997 to January 2001 (acting SG from January to June 2001)[16]
  • Paul D. Clement – 2001 to July 2004 (became acting SG)[17][18]
  • Gregory G. Garre – September 2005-June 19, 2008 (became acting SG)
  • Neal Katyal – January 2009 to May 2010 (became acting SG)[19][20]
  • Leondra Kruger – acting principal deputy SG named in August 2010[21][22]
  • Sri Srinivasan – August 2011 to May 2013 (became Chief Judge of D.C. Circuit)[23][24]
  • Ian Gershengorn – September 2013 to June 2016 (became Acting SG)[25][26]
  • Noel Francisco – January 20, 2017 to March 10, 2017 (became SG)
  • Jeff Wall – March 10, 2017 to January 20, 2021 (became Acting SG)[27][28]
  • Elizabeth Prelogar – January 20, 2021 - October 28, 2021 (became SG)
  • Brian Fletcher - October 28, 2021 - Present (became Acting SG)

Notes

  1. ^ Bhatia, Kedar S. (April 17, 2011). "Updated Advocate Scorecard (OT00-10)". Daily Writ.
  2. ^ Caplan, Lincoln (1987). The Tenth Justice: The Solicitor General and the Rule of Law. New York: Knopf.
  3. ^ 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.
  4. ^ https://www.washingtonpost.com/wp-dyn/content/article/2010/05/12/AR2010051205049.html RET. Dec. 27 2017 14:07 CST
  5. ^ 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.
  6. ^ 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.
  7. ^ a b c McElroy, Lisa (February 10, 2010). ""CVSG"s in plain English". ScotusBlog. Retrieved January 13, 2015.
  8. ^ 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. 35: 35–53. doi:10.1111/j.1540-5818.2010.01229.x. S2CID 144427264. SSRN 1496643.
  9. ^ 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.
  10. ^ Suter, William. "Clerk of the U.S. Supreme Court". U.S. Supreme Court Week (Interview). C-SPAN.
  11. ^ Toobin, Jeffrey. "Money Unlimited, How Chief Justice John Roberts Orchestrated the Citizens United Decision". The New Yorker. Retrieved May 16, 2012.
  12. ^ Herz, Michael (2002). "Washington, Patton, Schwarzkopf and ... Ashcroft?". Constitutional Commentary.
  13. ^ 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).
  14. ^ "Archived copy" (PDF). leahy.senate.gov. Archived from the original (PDF) on January 30, 2006. Retrieved January 12, 2022.{{cite web}}: CS1 maint: archived copy as title (link)
  15. ^ Biographies of Current Justices of the Supreme Court.
  16. ^ Stephanie Woodrow, Ex-Prosecutor to Join New York Attorney General's Office, Main Justice, December 23, 2010.
  17. ^ S. Hrg. 109-46
  18. ^ U.S. Department of Justice, Paul Clement to Serve As Acting Solicitor General, July 12, 2004.
  19. ^ Tom Goldstein, Neal Katyal to be Principal Deputy Solicitor General, SCOTUSblog, January 17, 2009.
  20. ^ Brent Kendall, Feds Prevail in Spat with Former Acting Solicitor General, Wall Street Journal, May 20, 2012
  21. ^ Ashby Jones, DOJ Taps 34-Year-Old for High-Ranking Position in SG's Office, Wall Street Journal, August 10, 2010
  22. ^ Tony Mauro, Surprise Appointment in SG's Office, The BLT: The Blog of the Legal Times, August 10, 2010.
  23. ^ U.S. Department of Justice, Solicitor General Donald B. Verrilli Appoints Sri Srinivasan as Principal Deputy Solicitor General, August 26, 2011.
  24. ^ Sri Srinivasan, U.S. Court of Appeals for the District of Columbia Circuit
  25. ^ Tom Goldstein, The new Principal Deputy Solicitor General, SCOTUSblog, August 9, 2013.
  26. ^ Tony Mauro, Gershengorn Named Principal Deputy Solicitor General, The BLT: The Blog of the Legal Times, August 12, 2013
  27. ^ "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.
  28. ^ "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

Media files used on this page

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Seal of the United States Department of Justice.

The origins of the seal are unknown; it was first used in the 19th century as the seal for the Office of the Attorney General (prior to the formation of the Department of Justice) but the exact date is unknown. Even the translation of the Latin motto is murky, a matter of debate between Latin scholars. The Department's currently accepted translation is who prosecutes on behalf of Lady Justice, referring to the Attorney General. The motto is an allusion to the wording of the writ in a qui tam action: qui tam pro domino rege quam pro se ipso sequitur ("he who sues on behalf of our lord the King as well as for himself." The current-day seal dates from 1934, when some (though not all) of the heraldic mistakes on the original were corrected. More information here.
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American Solicitor General Theodore Olson. From usdoj.gov.
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Holmes Conrad, United States Solicitor General
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American politician John William Davis (1873-1955)
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Official portrait of judge Daniel Friedman, U.S. Court of Appeals for the Federal Circuit.
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Francis Biddle, former Attorney General of the United States and the primary American judge during the Nuremberg trials.
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Charles Fried.jpg
Charles Fried, Solicitor General of the United States from October 1985 - January 1989
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an image of us solicitor general charles evans huges
Walter E. Dellinger III.jpg
Walter E. Dellinger III, acting United States Solicitor General for the 1996-1997
Hoyt-large.jpg
Image of USSG Henry M. Hoyt
Edwin Kneedler.jpg
Department of Justice Photo Library caption: "Deputy Solicitor General Edwin Kneedler was presented ENRD's Muskie-Chafee Award."
Bullitt-large.jpg
Image of USSG William Marshall Bullitt
Bowers-large.jpg
Image of USSG Lloyd Wheaton Bowers
Orlow W. Chapman.jpg
Orlow W. Chapman, Solicitor General of the United States, Educator, Businessman
Donald Verrilli -DOJ Portrait-.jpg
Donald Verrilli, Jr. Official Portrait as Solicitor General of the United States.
James M Beck.jpg
Derivative image from Time Magazine Cover, May 5, 1923
Gregory G. Garre.jpg
Gregory G. Garre, Acting United States Solicitor General
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Picture of US Solicitor General Rex E. Lee
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This is the official portrait of Ian Gershengorn, the acting Solicitor General of the United States
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Flag of the United States Solicitor General
James crawford biggs.jpg
a photograph of us solicitor general james crawford biggs
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Alexander Campbell King by Gari Milchers (1922)
Samuel F. Phillips.jpg
Samuel F. Phillips, second United States Solicitor General, politician and civil-rights layer.
Richards-large.jpg
Image of USSG John K. Richards
J. Howard McGrath.jpg
, Attorney General 1949-1952
William D. Mitchell cph.3b30394.jpg
William D. Mitchell, 18th Solicitor General of the United States and 54th United States Attorney General
John Goode - Brady-Handy.jpg
John Goode. Library of Congress description: "Goode, Hon. John, Rep. Of VA. Vol. In Confederate Army, Member of Confederate Congress"
William L. Frierson DOJ photo.jpg
U.S. Solicitor General William L. Frierson, DOJ photo
Kenneth W. Starr.jpg
Kenneth W. Starr, United States Solicitor General from 1989 to 1993 and Independent Counsel to investigate the death of the deputy White House counsel Vince Foster and the Whitewater land transactions by President Bill Clinton.
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Elizabeth Barchas Prelogar, Solicitor General of the United States under President Biden.
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Image of USSG Walter J. Cummings, Jr.
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Chart showing the structure of the office of the United States Solicitor General
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en:Seth Waxman, 41st Solicitor General of the United States
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Charles H. Aldrich, United States Solicitor General
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George A. Jenks, U.S. Solicitor General and U.S. House of Representatives from Pennsylvania's 25th congressional district.
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w:Drew S. Days, III, United States Solicitor General from 1993 to 1996