Solicitor general of the United States
The Solicitor General of the United States is a senior official in the Department of Justice, responsible for representing the federal government before the Supreme Court. Established in 1870, this role operates under the authority of the attorney general and is essential in deciding which cases will be appealed to the Supreme Court. The Solicitor General is the only official mandated by law to possess significant legal expertise, ranking fourth in the hierarchy of the Department of Justice. This position not only requires the Solicitor General to determine the government's legal stance on cases but also to argue those cases before the Court if they are accepted.
The Solicitor General plays a critical role as a "gatekeeper" of cases, with a notable success rate in having cases accepted by the Supreme Court. Their opinions are often sought by the Court in complex matters, and they are expected to maintain an impartial perspective, prioritizing justice over partisan interests. This unique relationship with the Supreme Court has earned the Solicitor General the informal title of "tenth justice." However, the position can create tensions with the executive branch, as seen in historical instances where Solicitors General have chosen to uphold legal integrity over political directives. Overall, the role of the Solicitor General is integral to the functioning of the U.S. legal system, balancing representation of executive interests with a commitment to the rule of law.
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Solicitor general of the United States
SIGNIFICANCE: Solicitors general play a key role in the appellate process, as they determine which cases the government will appeal to the Supreme Court and mediate interdepartmental disputes on matters of legal policy.
The office of solicitor general was created by Congress as part of the Department of Justice in 1870. Its purpose was to provide the attorney general and by extension the executive branch with legal advice. The solicitor general is the only official required by statute to be “learned in the law.” In the modern Department of Justice the solicitor general is a presidential appointee who ranks fourth in authority behind the attorney general, the deputy attorney general, and the associate attorney general. The solicitor general is primarily responsible for deciding what federal cases the government will appeal to the Supreme Court. These decisions are based on a number of factors, including the “ripeness” of the issue, the Court’s crowded docket, policy considerations, and the government’s legal resources.
The solicitor general determines the government’s position and argues the case before the Supreme Court if the Court accepts the case. The Supreme Court accepts about 75 percent of cases in which the solicitor general is a party or an amicus curiae (friend of the court) as compared with fewer than 5 percent of other petitioners. This makes the solicitor general the “gatekeeper” affecting the flow of cases to the Supreme Court. The Court grants the solicitor general special privileges with regard to court procedures in recognition of this role as the government’s attorney. At times, the Court will ask the solicitor general for an opinion on complicated cases. By tradition, the Court expects the solicitor general not to be narrowly partisan but to take a longer view of issues and to do so with candor. This special relationship with the Supreme Court has led the solicitor general to be informally called the “tenth justice.”
Because of this dual role as representative of the executive branch and counselor to the Court, solicitors general have taken an independent stance and viewed their primary loyalty to be to the idea of law and justice. This has led to tension with the executive branch. For example, Rex Lee, solicitor general from 1981 to 1985, refused on more than one occasion to put forth arguments advanced by the Reagan administration if he thought they were weak or inappropriate. This refusal to be, as he put it, “pamphleteer general,” finally led to his resignation. His successor, Charles Fried (1985-1989), was less reluctant to ask the Court to reverse matters for political reasons, which caused him to lose credibility and effectiveness before the Court. Independence remains a vital characteristic of the office and makes it a crucial component of the criminal justice system in the United States.
Bibliography
"About the Office." U.S. Department of Justice, 16 June 2023, www.justice.gov/osg/about-office. Accessed 10 July 2024.
Clayton, Cornell C. The Politics of Justice: The Attorney General and the Making of Legal Policy. Armonk, N.Y.: M. E. Sharpe, 1992.
Cole, George F., and Christopher Smith. American System of Criminal Justice. 10th ed. Belmont, Calif.: Thomson/Wadsworth, 2004.
Johns, Margaret, and Rex R. Perschbacher. The United States Legal System: An Introduction. Durham, N.C.: Carolina Academic Press, 2002.
"Solicitor General." Cornell Law School, Aug. 2021, www.law.cornell.edu/wex/solicitor‗general. Accessed 10 July 2024.