September 29, 1977

Role of the Solicitor General

77-56 MEMORANDUM OPINION FOR THE

ATTORNEY GENERAL

The purpose of this memorandum opinion is to discuss (1) the institutional relationship between the Attorney General and the Solicitor 

General, and (2) the role that each should play in formulating and 

presenting the Government’s position in litigation before the Supreme 

Court.

I

The Judiciary Act of 1789 created the Office of the Attorney General and provided that the Attorney General would prosecute and conduct all suits in the Supreme Court in which the United States was 

“concerned.” Act of September 24, 1789, ch. XX, § 35, 1 Stat. 73. The 

Office of the Solicitor General was created in 1870. Act of June 22, 

1870, ch. CL, §2, 16 Stat. 162. The statute provided that there should 

be in the Department of Justice “an officer learned in the law, to assist 

the Attorney General in the performance of his duties, to be called the 

Solicitor General . . and it provided further that the Attorney 

General could direct the Solicitor General to argue any case in which 

the Government had an interest. See Fahy,“The Office of the Solicitor 

General,” 28 A.B.A.J. 20 (1942).

The statute was enacted at the behest of Attorney General Henry 

Stanbery. Mr. Stanbery had argued that his work load was great and 

that he needed assistance in preparing opinions and arguing cases before 

the Supreme Court. He suggested that a new office be created for the 

purpose of discharging these functions. Congress, perceiving that the 

measure would make it possible to discontinue the expensive practice of 

retaining special counsel to represent the Government in cases argued 

before the Supreme Court, acceded to his request. Id.

In 1878 the language of the statute was partially revised. The language of the revision has survived to the present day. The modern 

statute, codified at 28 U.S.C. § 518, provides in pertinent part:

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(a) Except when the Attorney General in a particular case directs 

otherwise, the Attorney General and the Solicitor General shall 

conduct and argue suits and appeals in the Supreme Court and 

suits in the Court of Claims in which the United States is interested.

(b) When the Attorney General considers it in the interests of the 

United States, he may personally conduct and argue any case in a 

court of the United States in which the United States is interested, 

or he may direct the Solicitor General or any officer of the 

Department of Justice to do so.

The Department’s own regulations provide that the Solicitor General 

performs his duties “subject to the general supervision and direction” of 

the Attorney General. 28 CFR § 0.20. The same language is used to 

describe the relationship between the Attorney General and the offices 

that report directly to him, such as the Office of Legal Counsel. The 

Assistant Attorneys General in charge of the various divisions perform 

their duties subject to the Attorney General’s supervision, but under the 

direction of the Associate or Deputy Attorney General. From a legal 

standpoint, the relationship between the Attorney General and the 

Solicitor General would thus appear to be substantially the same as that 

existing between the Attorney General and the Assistant Attorneys 

General.

II

We think it plain from the language and history of the relevant 

statutes that the Office of the Solicitor General was not created for the 

purpose of relieving the Attorney General of the responsibility for 

formulating or presenting the Government’s case in litigation before the 

Supreme Court. Congress simply intended to provide the Attorney 

General with a learned helper who would perform these functions at 

the Attorney General’s direction. We note in passing that at least one 

Solicitor General has adopted this view publicly. See, Fahy, supra, at 

21. We know of no public utterance by a Solicitor General to the 

contrary. See, generally, Cox, “The Government in the Supreme 

Court,” 44 Chi. B. Record 221 (1963), Sobeloff, “The Law Business of 

the United States,” 34 Ore. L. Rev. 145 (1955); Stern, “Inconsistency in 

Government Litigation,” 64 Harv. L. Rev. 759 (1951). The short of the 

matter is that under law the Attorney General has the power and the 

right to “conduct and argue” the Government’s case in any court of 

the United States. 28 U.S.C. § 518(b).

III

Traditionally, however, the Attorney General has given the Solicitor 

General the primary resonsibility for presenting the Government’s 

views to the Supreme Court, and in the discharge of that function the 

Solicitor General has enjoyed a marked degree of independence.

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Indeed, his independence has been so great that one Solicitor General, 

Francis Biddle, was led to remark:

He [the Solicitor General] determines what cases to appeal, and the 

client has no say in the matter, he does what his lawyer tells him, 

the lawyer stands in his client’s shoes, for the client is but an 

abstraction. He is responsible neither to the man who appointed 

him nor to this immediate superior in the hierarchy of administration. The total responsiblity is his, and his guide is only the ethic of 

his law profession framed in the ambience of his experience and 

judgment. (F. Biddle, In Brief Authority 97 (1962).)

Because the question of the “independence” of the Solicitor General 

has a direct and important bearing upon the general question to which 

this memorandum is addressed, we shall consider it in some detail.

Mr. Biddle’s statement suggests that the Solicitor General has enjoyed two kinds of independence. First, he has enjoyed independence 

within the Department o f Justice. It is he, of all the officers in the 

Department, who has been given the task of deciding what the Government’s position should be in cases presented to the Supreme Court. The 

views of subordinate officers within the divisions of the Department are 

not binding upon him, and the Attorney General has made it a practice 

not to interfere. With respect to his relation to the Attorney General, 

we feel constrained to add, however, at the risk of repetition, that the 

Solicitor General’s independent role has resulted from a convenient and 

necessary division of labor, not from a separation of powers required by 

law. Moreover, Francis Biddle may have overstated the case to some 

degree. Under the relevant statutes, as noted, the Attorney General 

retains the right to assume the Solicitor General’s function himself, if he 

conceives it to be in the public interest to do so.

Secondly, the Solicitor General has enjoyed independence within the 

executive branch as a whole. He is not bound by the views of his 

“clients.” He may confess error when he believes they are in error. He 

may rewrite their briefs. He may refuse to. approve their requests to 

petition the Court for writs of certiorari. He may oppose (in whole or in 

part) the arguments that they may present to the Court in those instances where they have independent litigating authority.

The reasons for this independence are, for the most part, familiar:

First, it has been thought to be desirable, generally, for the Government to adopt a single, coherent position with respect to legal questions 

that are presented to the Supreme Court. Because it is not uncommon 

for there to be conflicting views among the various offices and agencies 

within the executive branch, the Solicitor General, having the responsibility for presenting the views of the Government to the Court, must 

have power to reconcile differences among his clients, to accept the 

views of some and to reject others, and, in proper cases, to formulate 

views of his own.

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Second, as an officer of the Court and as an officer of Government, 

the Solicitor General has a special duty to protect the Court in the 

discharge of its constitutional function. He protects the Court’s docket 

by screening the Government’s cases and relieving the Court of the 

burden of reviewing unmeritorious claims. He prepares accurate and 

balanced summaries of the records in the cases that are presented for 

review; and within the limits of proper advocacy, he provides the 

Court with an accurate and expert statement of the legal principles that 

bear upon the questions to be decided.

Third, as an officer who plays an important role in the development 

of the law, he has a duty to protect the law from disorderly growth. 

He is called upon to decide questions of “ripeness” in the most general 

sense: on a case-by-case basis he must determine whether this is the 

appropriate time for presenting this issue to the Supreme Court on this

record. See Cox, supra, at 226. In order to discharge that function, he 

must have, among other things, the power to refuse requests for petitions for certiorari and the power to decline to present the Government’s views, as amicus, in cases in which the Government might 

otherwise have an interest.

Finally, and most importantly, the Solicitor General has assumed an 

independent status because of the prevalent belief that such independence is necessary to prevent narrow or improper considerations (political or otherwise) from intruding upon the presentation of the Government’s case in the Nation’s highest Court. It was a Solicitor General, 

Frederick W. Lehmann, who wrote that “the United States wins its 

point whenever justice is done its citizens in the courts”; and the 

burden of history is that justice is done most often when the law is 

administered with an independent and impartial hand. The Nation 

values the Solicitor General’s independence for the same reason that it 

values an independent judiciary. The Solicitor General has been permitted his independence largely because of the belief, as Mr. Biddle put it, 

that “the ethic of his law profession framed in the ambience of his 

judgment and experience” should be his only guide.

IV

In what circumstances should the Attorney General exercise his right 

to “conduct” litigation before the Supreme Court? To the extent that 

the Solicitor General’s traditional role reflects a simple division of labor 

within the Department, it is plain that the Attorney General may 

exercise his prerogative whenever it is administratively convenient for 

him to do so. The real question is to what extent he can intervene, in 

individual cases, without doing violence to the important principles or 

functions that have justified the Solicitor General’s independence 

within the Government at large.

We have identified four such principles or functions: the Solicitor 

General must coordinate conflicting views within the executive branch;

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he must protect the Court by presenting meritorious claims in a 

straightforward and professional manner and by screening out unmeritorious ones; he must assist in the orderly development of decisional 

law; and he must “do justice”—that is, he must discharge his office in 

accordance with law and ensure that improper concerns do not influence the presentation of the Government’s case in the Supreme Court.

In our opinion, there is no institutional reason why the Attorney 

General could not, in individual cases, discharge all four of these 

functions as well as the Solicitor General. However, in practice the 

Attorney General could never be sure that he was exercising the 

independent judgment essential to the proper performance of those 

functions if he acted alone without the advice of an independent legal 

adviser, i.e., the Solicitor General.

The Attorney General is responsible for the objective and evenhanded administration of justice independent of political considerations or 

pressures. However, he is also a member of the President’s Cabinet and 

responsible for advising the President on many of the most important 

policy decisions that are made in the executive branch. He is necessarily exposed repeatedly to nonlegal arguments and opinions from other 

Cabinet members. His is the difficult task of separating the different 

factors that might properly be considered in his role as a policy adviser 

from those relevant to his duties as the chief legal officer of the 

Government.

The Constitution requires the President, and thus the Attorney General, to execute the laws faithfully. It requires them to follow the law, 

even if that course conflicts with policy. For this reason alone, in our 

view, the tradition of the “independent” Solicitor General is a wise 

tradition. It has arisen because it serves a useful constitutional purpose. 

Very simply, an independent Solicitor General assists the President and 

the Attorney General in the discharge of their constitutional duty: 

concerned as they are with matters of policy, they are well served by a 

subordinate officer who is permitted to exercise independent and expert 

legal judgment essentially free from extensive involvement in policy 

matters that might, on occasion, cloud a clear vision of what the law 

requires. While it is doubtful whether either the President or the A ttorney General could “delegate” to the Solicitor General the ultimate 

responsibility for determining the Government’s position on questions 

of law presented to the Supreme Court, as a matter of practice, in the 

discharge of their offices, they can allow themselves the benefit of his 

independent judgment, and they can permit his judgment to be dispositive in the normal course.

The dual nature of the Attorney General’s role as a policy and legal 

adviser to the President strengthens, in our view, the necessity for an 

independent Solicitor General. To the extent the Solicitor General can 

be shielded from political and policy pressures—without being unaware 

of their existence—his ability to serve the Attorney General, and the

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President, as “an officer learned in the law” is accordingly enhanced. 

For this reason we believe the Solicitor General should not be subjected to undue influence from executive branch officials outside the D epartment of Justice. The Solicitor General should not be viewed as 

having final, essentially unreviewable authority in controversial cases, 

because such a role would inevitably subject him to those policy pressures that can obscure legal insights. The Attorney General, we believe, 

reinforces the independence of the Solicitor General by allowing himself to act as the final legal authority in those small number of cases 

with highly controversial policy ramifications. As such, the Attorney 

General and not the Solicitor General will be the focus of policy 

pressures from both within and outside the executive branch.

We do not believe that the Attorney General’s power to direct the 

prosecution of cases in the Supreme Court should never be exercised, 

but we do believe that the tradition of the independent Solicitor General is one that should be preserved. We think that the Attorney General 

can participate in the formulation of the Government’s position before 

the Court in certain circumstances without doing violence to that 

tradition; but, because of the value of the Solicitor General’s independence, there are procedural and substantive considerations that should 

guide and temper the exercise of that power.

V

Procedural Considerations. Undoubtedly, the working relationship 

between the Attorney General and the Solicitor General is one that 

will vary from Administration to Administration in accordance with 

the personalities of the individuals who hold these offices; but as we 

have said, the traditional pattern is one of noninterference. From this 

tradition we derive a rule of procedure: in our opinion, with respect to 

any pending case, the Solicitor General should be given the opportunity to consider the questions involved and to formulate his own initial 

views with respect to them without interference from the Attorney 

General or any other officer in the Administration.

There are at least two reasons for following a procedure of this kind. 

First, the procedure ensures that the Attorney General (and the President) will enjoy the benefit of the Solicitor General’s independent 

judgment in every case. That independence would be compromised if 

the Solicitor General were subjected to frequent advice or suggestions 

from the President or the Attorney General before he is allowed to 

formulate his own position. Second, this procedure helps to ensure that 

the Attorney General will not exercise his supervisory powers gratuitously. No one can say what the Solicitor General’s position will be 

before he has taken it.

This brings us to a related point. The Solicitor General should be 

allowed to formulate a position with respect to pending cases, and he 

should be allowed to act independently in the discharge of that func233
tion, but he should not be required to make his decision in an informational vacuum. He is not omniscient, and he should be free to consult 

the various offices and agencies in the executive branch that may have 

views on the questions presented by the case at hand. In fact, this is the 

traditional practice. The Solicitor General does consult and is consulted 

by other officers of Government. Far from detracting from his independent function, this practice enhances its value. It ensures that the 

Solicitor General’s judgment will be informed judgment.

Substantive Considerations. Once the Solicitor General has taken a 

position with respect to a pending case, that position will, in most cases, 

become the Government’s position as a matter of course. However, in 

some cases the Attorney General may need to determine whether or 

not the Government should adopt that position. Plainly, the Attorney 

General, as well as the President, have the power to decline to adopt it, 

but to exercise that power is to reject the Solicitor General’s independent and expert legal counsel in favor of other legal advice or policy 

considerations.

We should make one observation at this point. We have said that an 

independent Solicitor General assists the Attorney General and the 

President in the discharge o f their constitutional duty to put law before 

policy. It is our opinion that if the Solicitor General is to be of real 

value in that regard, his judgment must be permitted to be dispositive in 

the ordinary course. The Government’s position should be changed by 

the Attorney General only in rare instances.

How does one identify the “rare instances” in which intervention by 

the Attorney General may be justifiable? We can offer no litmus test, 

but we wish to make several observations that bear upon the question.

First, in our opinion, the mere fact that the Attorney General may 

disagree with the Solicitor General over a question of law is not 

ordinarily a sufficient reason for intervention in a given case. If the 

Solicitor General has fallen into error, the Supreme Court will have an 

opportunity to correct the error, and the Government’s ultimate interest in a just result will be vindicated. If the Court upholds his position, 

then all the better, for his legal judgment and not that of his superiors, 

was correct. In either case, for all of the reasons given above, the 

potential benefit of intervention is usually outweighed, in our view, by 

the mischief inherent in it.

There may be a case in which the Attorney General is convinced 

that the Solicitor General has erred so far in.the legal analysis that 

intervention is required. W e believe such cases will be quite rare, but 

when they arise the Attorney General must follow the rule of law 

himself and be guided by his own experience and judgment.

There is another category of questions that may be involved in cases 

presented to the Supreme Court with respect to which the Attorney 

General’s or the President’s judgment may be essential. Our analysis

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turns upon the uncertain but traditional distinction between questions of 

law and questions of policy.

All of the cases that are decided by the appellate courts can be said 

to involve “questions of law” in a technical sense. The outcome in each 

case must be justified by reference to rules or principles that are 

prescribed in the Constitution, statutes, regulations, ordinances, or in 

the previous decisions of the courts. In some cases, however, questions 

of “policy” are integrally intertwined with questions of law. In other 

cases the major decision may be a discretionary one such as filing of an 

amicus brief when there has been no request from the Court for the 

views of the Government.

The Solicitor General can and should enjoy independence in matters 

of legal judgment. He should be free to decide what the law is and 

what it requires. But if “law” does not provide a clear answer to the 

question presented by the case before him, we think there is no reason 

to suppose that he, of all the officers in the executive branch, should 

have the final responsibility for deciding what, as a matter of policy, 

the interests of the Government, the parties, or the Nation may require. 

To our knowledge, no Solicitor General has adopted a contrary view.

The short of the matter is that cases may arise in which questions of 

policy are so important to the correct resolution of the case that the 

principles that normally justify the Solicitor General’s independent and 

dispositive function may give way to the greater need for the Solicitor 

General to seek guidance on the policy question. Questions of policy 

are questions that can be effectively addressed by the Attorney General, a Cabinet officer who participates directly in policy formation and 

who can go to the President for policy guidance when the case demands.

But the Attorney General and the President should trust the judgment of the Solicitor General not only in determining questions of law 

but also in distinguishing between questions of law and questions of 

policy. If the independent legal advice of the Solicitor General is to be 

preserved, it should normally be the Solicitor General who decides 

when to seek the advice of the Attorney General or the President in a 

given case.

J o h n M . H a r m o n

Assistant Attorney General

Office o f Legal Counsel

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