Solicitor General Of all the nation's officials, the solicitor general is the only one required by statute to be “learned in the law.” He is the chief courtroom lawyer for the executive branch and serves in the Justice Department, but he also has chambers at the Supreme Court. The fact that he keeps offices at these two institutions underscores his special role, which is summed up in his informal title as the “tenth justice.”

The post of solicitor general was established in 1870, when Congress created the Department of Justice. The first solicitor was Benjamin Bristow, who had made his reputation in the legal pursuit of the Klu Klux Klan as the chief federal prosecutor in Kentucky. Congress intended that the solicitor would assist the attorney general by representing the United States wherever the government had an interest in litigation. Early solicitors argued occasional cases, but since 1950, have concentrated on the government's appeals and/or certiorari petitions to the Supreme Court.

Within the executive branch, the solicitor general has filled an almost judicial function. For every petition for a writ of certiorari that the solicitor general sends to the Supreme Court, he or she rejects five from federal agencies with grievances they want the justices to settle. The solicitor's restraint in petitioning pays off in credibility with the Court. The justices rely heavily on the solicitor general to help choose and present the most pressing cases for review. From 1985 to 2002, the Court granted 52 percent of the certiorari petitions submitted by the solicitor general, as opposed to only 3 percent of those submitted by other lawyers across the country.

The justices also turn to the solicitor general for help on legal problems that appear especially vexing and regularly invite him to submit briefs in cases where the executive branch is not a party. As a friend of the Court or as a party, the solicitor general now takes part in about 80 percent of all cases decided on merits by the Supreme Court. The justices expect the solicitor to look beyond the government's narrow interests, to take a long view about the development of legal doctrine.

Clearly, there is a special relationship between the solicitor's office and the Supreme Court. When a member of the Court dies, the solicitor general is asked to call a meeting of the Supreme Court bar to honor the justice. The justices also give the solicitor general dispensations in Court. In accordance with the Supreme Court's rules, the solicitor general is the only amicus curiae regularly given time to argue.

The solicitor general reciprocates such dispensations with a number of distinctive practices. One is known as “confessing error.” If a private attorney wins a criminal case that he thinks he should have lost in a lower federal court, he is likely to accept his victory in diplomatic silence. But when the government wins on terms that strike the solicitor general as unjust, he may “confess error” and recommend that the Supreme Court overturn the flawed decision.

Chief Justice William Rehnquist and the late Justice Byron White have criticized the practice from the bench and in opinions, on the ground that the solicitor is playing a role properly left to the Court. But former solicitor general Archibald Cox expressed faith in the practice of confessing error. In his view, it tests the conviction that the office has a special responsibility to the Court. If the solicitor takes a disinterested position even when it means surrendering a victory, then the government's other cases are more likely to be presented with restraint, candor, and a long view.

The tradition of restraint practiced by Cox and other solicitors in both Democratic and Republican administrations since the early years of the twentieth century was challenged by the administration of Ronald Reagan. Rex Lee, the first Reagan solicitor, was forced from office after he refused to press the administration's social policies at every turn. The administration turned the solicitor's post into that of a partisan spokesman for the policies of the president, rather than the legal conscience of the government, and for a vision of the roles of the three branches of government largely at odds with the view that had evolved in the American mainstream during the previous fifty years.

When Robert H. Jackson was solicitor for the administration of Franklin D. Roosevelt, by contrast, he argued for New Deal constitutionalism to an anti–New Deal court, yet maintained the traditional role of his office. A key difference between the use of the solicitor's office by the Roosevelt and Reagan administrations, although both asked the Court to overturn established doctrine, was their view about the roles of the executive and judicial branches in interpreting the Constitution.

The Roosevelt administration urged the Court to uphold social legislation that it had struck down, but deferred to the Court as the final arbiter of constitutional law. The Reagan administration attacked judicial review, on the ground that the Supreme Court had misapplied this principle for a quarter century, making social policy instead of interpreting the law. This challenge led to a controversy about the relationship between the solicitor's office and the Supreme Court, for once the administration elevated the executive branch to the Court's level as an interpreter of the Constitution, there was no reason for the solicitor to maintain traditional deference to the Court.

Many solicitors general have enjoyed prominent subsequent careers. Bristow became secretary of the treasury and won convictions against members of the “Whiskey Ring,” a powerful group of distillers who had evaded liquor taxes. John W. Davis ran for president in 1924, losing to Calvin Coolidge, and had a distinguished career as an advocate at the Supreme Court bar. Jackson, William Howard Taft, Stanley Reed, and Thurgood Marshall later served on the Supreme Court. Cox served as a Watergate special prosecutor and Kenneth W. Starr as the Whitewater independent counsel.

The debate about the solicitor's role in the 1980s drew wide attention to the solicitor general for the first time and led to fresh theorizing about his role. In the wake of controversy, there remains wide agreement that the solicitor general plays a unique role in American law, but no view about how the role should be defined commands a clear consensus among scholars or practitioners.

The disagreement is about whom the solicitor general represents and how he should relate to the administration he serves. One perspective is that the solicitor's main duties are to the interests of the United States, however difficult to discern, and to helping the Court in the orderly development of the law. The opposing viewpoint is that he is primarily an advocate for the executive branch and in particular for the policies favored by the president, and that he is not the tenth justice.

In either case, the solicitor general is seen as having a choice about how to fulfill his mission. He can practice in relative isolation, buffered from daily political pressures to preserve the credibility of the office. Or he can seek out the views of the attorney general and other high‐ranking officials, including the president, to make sure she understands their perspectives especially in cases where law is indistinguishable from policy. The solicitor general is, however, indisputably an official of the Justice Department (now with fourth ranking) and is ultimately subject to the directives of the attorney general and the president.

The burgeoning list of articles in law reviews about the role of the solicitor general address these choices in terms of “independence”: does the solicitor have the autonomy and the authority to decide what the government's position should be in court?

When Reagan was elected president, the Republican‐appointed attorney general and chief justice each called Wade McCree, the solicitor general chosen by Democrat Jimmy Carter. They asked that McCree remain through the end of the Supreme Court term and until his successor was approved by the Senate, although that meant McCree would have to remain in office for the first six months of the Reagan presidency. Observers of the solicitor general's office regarded the last part of McCree's tenure as evidence that his post was in key ways nonpartisan, in the spirit of a letter misaddressed to his earlier predecessor Jackson as “The Celestial General.”

Twenty years later, when the Republican George W. Bush was elected president, Seth P. Waxman, the solicitor appointed by Democrat Bill Clinton, resigned the day Bush was sworn in. He did so because he believed that the new president had the right to pick his own advocate (and to give his deputy Barbara Underwood the chance to be the first female acting solicitor general).

Waxman is one of the most respected of the recent solicitor generals and his outlook about the post is influential: the solicitor general's “special relationship to the Court is not one of privilege, but of duty,” he said in a lecture to the Supreme Court Historical Society, and by long tradition the solicitor “has been accorded a large degree of independence.” Yet the contrast between how McCree's tenure ended and how Waxman's did corresponds to the now high‐profile and increasingly partisan nature of the post.

Bibliography

Lincoln Caplan , The Tenth Justice: The Solicitor General and the Rule of Law (1987).
Drew S. Days III , In Search of the Solicitor General's Clients: A Drama, Kentucky Law Journal (1994): 485–503.
Charles Fried , Order and Law: Arguing the Reagan Revolution: A Firsthand Account (1991).
Rex E. Lee Conference on the Office of the Solicitor General of the United States, symposium in Brigham Young University Law Review 2003: 1–183.
The Role and Function of the United States Solicitor General, symposium in Loyola Law Review 21 (June 1988): 1047–1271.
David A. Strauss , Government Lawyering: The Solicitor General and the Interests of the United States, Law & Contemporary Problems (Winter 1998): 165–177.
Seth P. Waxman , Does the Solicitor General Matter? Stanford Law Review 53 (May 2001): 1115–1126.

Lincoln Caplan

SOLICITOR GENERAL

An officer of the U.S.justice departmentwho represents the federal government in cases before the U.S. Supreme Court.

The solicitor general is charged with representing the executive branch of the U.S. government in cases before the U.S. Supreme Court. This means that the solicitor and the solicitor's staff are the chief courtroom lawyers for the government, preparing legal briefs and making oral arguments in the Supreme Court. The solicitor general also decides which cases the United States should appeal from adverse lower-court decisions.

Congress established the office of solicitor general in 1870 as part of the legislation creating the Department of Justice. Although early solicitors occasionally handled federal trials, for the most part the solicitor general has concentrated on appeals to the Supreme Court. In this role the solicitor has come to serve the interests of both the executive branch and the Supreme Court.

The federal government litigates thousands of cases each year. When a government agency loses in the federal district court and the federal court of appeals, it usually seeks to file a petition for a writ of certiorari to the Supreme Court. The Court uses this writ procedure as a tool for discretionary review. The solicitor general reviews these agency requests and typically will reject most of them. This screening function reduces the workload of the Supreme Court in processing petitions, and it enhances the credibility of the solicitor general when he or she requests certiorari. The Court grants review in approximately 80 percent of the certiorari petitions filed by the solicitor general, compared with only 3 percent filed by other attorneys.

The solicitor general occasionally files amicus curiae (friend of the court) briefs in cases where the U.S. government is not a party but important government interests are at stake. Sometimes the Court itself will request that the solicitor file a brief where the government is not a party. The Court also allows the solicitor general to participate in oral arguments as an amicus.

Four former solicitors general later served on the Supreme Court: william howard taft, stanley f. reed, robert h. jackson, and thurgood marshall.

further readings

Caplan, Lincoln. 1988. The Tenth Justice: The Solicitor General and the Rule of Law. New York: Vintage Books.

Pacelle, Richard L. 2003. Between Law & Politics: The Solicitor General and the Structuring of Race, Gender, and Reproductive Rights Litigation. College Station: Texas A&M Univ. Press.

Salokar, Rebecca Mae. 1992. The Solicitor General: The Politics of Law. Philadelphia: Temple Univ. Press.

U.S. Government Manual Website. Available online at <www.gpoaccess.gov/gmanual> (accessed November 10, 2003).