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Solicitor General

SOLICITOR GENERAL

The solicitor general is a senior officer of the United States Department of Justice with special responsibilities in the representation of the United States and its officers and agencies before the Supreme Court, and in the administration of justice in the federal appellate courts.

The title—solicitor general—like that of attorney general is derived from English usage, but the functions of the offices are quite different in the United States. In England, both offices are political in the sense that they are filled by members of Parliament. In the United States, neither the attorney general nor the solicitor general is a member of Congress. The attorney general is a member of the Cabinet. He advises the President, works with members of Congress on legislative matters and judicial appointments, holds press conferences and is otherwise responsible for governmental and public relations. He is also charged with administering a large department which includes the federal bureau of investigation, the Bureau of Prisons, the Immigration and Naturalization Service, and other important agencies. Though he has policy and administrative responsibilities of great importance, he has virtually no time to be a lawyer in the traditional sense.

Until 1870, the attorney general functioned alone with only a small staff, and in association with the United States attorneys in the various states, over whom he had little authority. In 1870, apparently as an economy device (to eliminate the cost of retaining private lawyers in the increasing number of cases), Congress established the Department of Justice, with the attorney general as its head. The statute provided that there should be in the Department "an officer learned in the law, to assist the Attorney-General in the performance of his duties, to be called the solicitor-general." Under the statute the solicitor general was authorized in the attorney general's discretion to argue "any case in which the government is interested" before the Supreme Court, or in any federal or state court." These statutory provisions remain to the present day, essentially unchanged.

In the years since 1870, the duties of the Department of Justice have greatly increased. Until 1953 the solicitor general was the second officer in the Department of Justice and served as acting attorney general in the attorney general's absence. The responsibilities of the attorney general have made it necessary to add a deputy attorney general and an associate attorney general, so that the solicitor general is now the fourth ranking officer in the department. But the solicitor general's responsibilities have remained essentially unchanged in substance—though greatly increased in volume—over the past sixty years. He remains the leading officer in the department functioning primarily as a lawyer.

As the pattern has developed, the solicitor general is not a politician, and he has only a minimum of political responsibility. His function is to be the government's top lawyer in the courts, particularly the Supreme Court, and by well-established tradition he is allowed considerable independence in carrying out this role. Bent and Schloss, describing the office as "the bridge between the Executive and the Judiciary," have said that "[t]he Solicitor General must often choose between incongruous roles and differing loyalties. He is still the government's lawyer, and he most frequently acts as an advocate. On the other hand, he also functions as a reviewer of government policies, an officer of the Court, and … a protector of the public interest."

In more specific terms, the organization of the Department of Justice assigns to the solicitor general four areas of responsibility. Two of these are of primary importance. First, the solicitor general is responsible for the representation of the United States and its officers and agencies in all cases before the Supreme Court of the United States. The briefs which are filed on behalf of the government in the Supreme Court are prepared by him or under his direction. He argues the most important cases himself, and assigns the argument in other cases to members of his staff, to other lawyers in the Department of Justice or to lawyers for the agencies which may be involved in the cases before the Court. Second, the Solicitor General decides whether the United States will appeal in any case which it loses in any court, state or federal, or indeed in foreign courts. This function is not widely known, even in the legal profession. It is, however, a very important means of coordinating and controlling the government's litigation, so that cases of little importance are not taken to the appellate courts. It also serves to minimize the taking of inconsistent positions before the various appellate courts.

This function includes determining whether any case will be taken by the government to the Supreme Court. This is probably the most important responsibility assigned to the solicitor general. With few exceptions, no case can now be taken to the Supreme Court except on application for review—called a petition for a writ of certiorari. In recent years, some four thousand such applications are made to the Court by all parties each year. Yet the Court can hear on the merits only about a hundred and fifty cases a year. This means that it is of great importance for the solicitor general to select with care the relatively small number of cases in which the government will file petitions. A high proportion of the solicitor general's petitions are in fact granted by the Court, which means that he has, as part of his responsibility, carried out an important part of the selection process necessarily confronting the Court.

In addition to the two functions just outlined, the solicitor general has two other responsibilities. These assist him in carrying out his role as overall controller of Government appellate jurisdiction. First his authorization must be obtained before the United States or one of its officers or agencies files a brief as friend of the court—amicus curiae—in any appellate court. Second his authorization must be obtained before a petition for rehearingen banc—before the whole court—is filed in any united states court of appeals. The courts of appeals are overburdened, and hearings en banc present serious logistical problems. Requiring authority from the solicitor general means that such petitions are rarely filed, and only in the most important cases.

The solicitor general's office is a relatively small one, though it has grown slowly in recent years. At the present time it numbers about twenty lawyers in addition to the solicitor general himself; and, including secretaries and aides, the total number of personnel in the office is about fifty. Thus it can operate in much the same way as a moderate-sized law firm. There is considerable pressure in the office as the cases keep coming in, from all parts of the country, and almost all of them are subject to relatively short deadlines.

In the nature of things, the solicitor general cannot be a specialist. The cases coming to his desk involve every field of law—constitutional law, administrative law, criminal law, tax law, antitrust law, labor law, international law, environmental protection, energy, and every other field with which the government is concerned. Inevitably, the staff in the office specialize to some extent, and there are four deputy solicitors general, each of whom has special responsibilities for particular areas. But there are no rigid lines, and all lawyers in the office are available to handle the various types of cases as they come in.

The solicitor general's role in the Supreme Court is limited to the representation of the United States, its officers, and its agencies. Other cases which may be of great importance involve private parties, or states or their subsidiaries. Thus, the cases involving birth control (griswold v. connecticut, 1965) and abortion (roe v. wade, 1973) were not handled by the solicitor general. But more than half of the cases before the Supreme Court (particularly those heard by the Court on the merits) are "government cases," that is, cases in which the United States, or its officers or agents, are parties. It is important to the Court to have these cases handled in competent fashion, and the research and ideas, and policy decisions, lying behind the solicitor general's advocacy before the Supreme Court can influence the decisions reached by the Court.

Much of the government's litigation before the Supreme Court, though important, does not attract wide public attention. From time to time, though, cases coming before the Court are rather spectacular in terms of public interest. Reference may be made, for example, to youngstown sheet & tube co. v. sawyer (1952), where the Court invalidated the action of President harry s. truman in seizing the steel industry during the korean war, the Pentagon Papers case (new york times co. v. united states, 1971), and united states v. nixon (1974), where the Court held that the White House tapes made under the direction of President richard m. nixon must be turned over in response to a subpoena from a grand jury. For the most part, though, the work of the solicitor general and his staff is rather straightforward professional work.

It is important to recognize that in all cases the solicitor general is an advocate and not a judge. However, he is a very special sort of advocate. There are some positions which he will not support because he thinks the government's position is clearly wrong in law. On rare occasions, in such cases, he "confesses error" before the Court. The Court is not bound by such a confession, but it usually accepts the solicitor general's conclusion. There are other cases where the solicitor general will not himself defend the government's position, but he thinks a "respectable" defense can be made, and he assigns another government lawyer who is willing to do so to present that defense. Illustration of this may be found in Peters v. Hobby (1955), involving the loyalty-security program during the 1950s, and in Gutknecht v. United States (1970), involving "delinquency reclassification" under the selective service act. But the solicitor general will frequently advocate a position which he believes to be worthy of presentation to the Court even though he might not decide in favor of that position if he were a judge. Laymen sometimes have difficulty in accepting this, but, within limits, it is inherent in the role of a lawyer, and it is inherent in the position of the solicitor general. For he is the government's chief advocate. The function of deciding cases is assigned to others.

In this situation, the solicitor general's role is sometimes a difficult one. Whenever he decides not to take a case before the Supreme Court, he is in effect depriving the Court of the opportunity to decide it. This is, indeed, an important part of his function, in view of the fact that many more applications come to the Court than it can possibly accept. The solicitor general's judgment that the chances of success in a particular case are slim is obviously a relevant consideration. Yet there are cases of such importance that he should take the case to the Court, in order to obtain a definitive decision, even though he has little faith in the government's position.

An illustration is found in United States v. United States District Court (1972). This involved the validity of so-called national security wiretaps, made on executive authority (the President or the attorney general) alone, without a judicial warrant. As the cases before the Supreme Court developed, it seemed unlikely that the Court would uphold such wiretaps, at least in cases of domestic security. Yet the attorney general needed to know. If he had such authority, cases might develop where he would need to use it. If he did not have the authority, he should have the definitive decision of the Supreme Court, by which he would, of course, abide. A petition was filed with the Court in order that the question might be definitively settled, and the Court granted the petition. In due course, the Court held that domestic "national security" wiretaps are illegal under the fourth amendment, when made without a court warrant. Thus the solicitor general, though himself dubious about the government's case, played his appropriate role in obtaining a definitive decision on an important public question.

In the daily routine of his office the solicitor general has many decisions to make. In making these decisions, he may be subject to various pressures. These pressures may be wholly legitimate professional pressures from other lawyers in the government seeking to persuade him to accept their view. He frequently gives hearings, too, to opposing lawyers. There may also be various forms of political pressure—rarely presented as such—from Capitol Hill, or from other officers of the government. The solicitor general should be able to receive such representations and come to his own conclusions. Attorneys general have usually been firm in their support of the solicitor general. And, indeed, the fact that the decision is assigned to the solicitor general may serve to protect the attorney general from such pressures. But the attorney general and the President are the solicitor general's superiors, and if he receives an order from above he must decide whether the matter is one of principle for him; if it is, he must resign. As far as is known, no solicitor general has ever resigned for such a reason. But this is what happened to Attorney General Elliott Richardson and Deputy Attorney General William Ruckelshaus, when they refused to comply with President Nixon's order to discharge Archibald Cox as Special Prosecutor in 1973.

Special problems arise when officers or agencies differ from the position of the solicitor general, and especially when two or more agencies have different interests or points of view which they present vigorously to the solicitor general or his staff. A situation of this sort arose in the case of Fortnightly Corp. v. United Artists Television, Inc. (1968), involving cable television. The Copyright Office in the Library of Congress had one view about the case. The Federal Communications Commission had another. And the Antitrust Division in the Department of Justice had still a third. All views were strongly advocated. The solicitor general negotiated separately with the lawyers for each office concerned. None would yield. Then he held a meeting at which all interested lawyers were present, hoping that some sort of a consensus would emerge. Unfortunately, none did, and the solicitor general concluded that he had no alternative but to formulate his own view, which he submitted to the Court.

This case exemplifies one of the important roles of the solicitor general, in resolving differences within the government, so that a single position may be presented to the Court. When these differences arise within the Justice Department, or between the several executive departments, the solicitor general seeks to persuade but eventually may have to make his own decision. The situation is somewhat more difficult when the difference is with one of the "independent agencies," such as the Federal Trade Commission or the Securities and Exchange Commission.

For historical reasons, it has long been settled that the Interstate Commerce Commission and the Maritime Commission can appear before the Supreme Court through their own lawyers. With respect to the other agencies, however, the statutory provisions are not explicit. Though there is occasionally some tension, the solicitor general has been able to maintain effective control over agency cases in the Supreme Court. In this process, various devices are used. He sometimes advises the Court that the agency has a different view. He sometimes authorizes the agency to file a brief stating its view. By and large, the agencies believe that the solicitor general's support is important and helpful, and this belief is reinforced by the standing of the solicitor general before the Court. Cases of this sort are carefully considered in the solicitor general's office, and full hearings are given to the lawyers from the agencies involved. In this way problems of real difficulty have been resolved with substantial satisfaction on the part of all concerned.

There is a final role of the solicitor general which, though long an important one, has been of increasing significance in recent years. This is the preparation and filing of briefs in the Supreme Court as a friend of the Court—amicus curiae. Under the Rules of the Supreme Court, the solicitor general is authorized to file such a brief without consent of the parties or special leave of the Court. Frequently a case between private parties, or a state criminal prosecution, may raise a question of great interest to the federal government, though the latter is not a party. An example is terry v. ohio (1968), involving the validity of a stop and frisk by local police. The solicitor general filed an amicus brief in that case because of the great interest of the federal government in law enforcement. Through such briefs, the solicitor general protects the interests of the federal government, aids the Court by furnishing information and relevant legal materials, facilitates the handling of difficult questions with the "independent agencies" of the government, and, on occasion, presents his own views on novel constitutional questions.

In this way, the solicitor general has participated in cases involving school desegregation, legislative civil rights, and many other important questions of developing constitutional and statutory law. Within wide limits, the solicitor general has freedom to develop his own position in such briefs. The solicitor general and his staff have great experience in Supreme Court cases, and well-considered and carefully prepared briefs can be of considerable assistance to the Court through impartial and informed analysis of novel questions.

Indeed, a high proportion of briefs amicus filed by the solicitor general are prepared because of direct invitation from the Court. Such invitations are always treated as commands, and great care is taken in determining the position to be taken and in developing the materials to be included in the brief. In many ways, such briefs are the purest expression of the relation of trust and confidence which has long been established between the solicitor general and the Court.

It is this trust and confidence on which the position of the solicitor general before the Court, and his effective representation of the United States, in the long run depend.

Erwin N. Griswold
(1986)

Bibliography

Note 1969 Government Litigation in the Supreme Court. Yale Law Journal 78:1442–1481.

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