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, John Roberts, has been serving in the role since June 11, 2001.

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.

## 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.

## 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" 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.

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, and Thurgood Marshall. Some who have had other positions in the Office of the Solicitor General have also later been appointed to the Supreme Court. The last former solicitor general to be successfully nominated to the court was Justice Thurgood Marshall. 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. Nine 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." 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). 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.

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

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. 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.

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.

## 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.

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.

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.