Solicitor General (Update)

views updated


The solicitor general is the chief advocate in the Supreme Court for the United States government, its officers, and its agencies, but he is also known as the Tenth Justice. By tradition rather than constitutional mandate, the solicitor has a "dual responsibility" to the judicial and the executive branches, as Justice lewis f. powell observed. For generations (the solicitor's post was established in 1870), Supreme Court Justices have counted on the solicitor to look beyond the government's narrow interests and help guide them to the "right" result in the case at hand; they also expect him to pay close attention to the case's impact on the law. The solicitor's reach extends to the lower federal courts, as well: although the executive branch is usually represented there by other lawyers from the Justice Department, the solicitor approves all appeals taken by the government. After the Supreme Court issued its landmark one person, one vote ruling in baker v. carr (1962), which Chief Justice earl warren called the most important decision of his tenure, an amicus curiae brief filed by Solicitor General Archibald Cox was credited with having persuaded at least two members of the Court's majority to treat reapportionment of electoral districts as a justiciable issue. Without those votes, the Court would have reaffirmed a lower court decision to leave the issue to the legislature as a political question.

The Court's explicit reliance on the solicitor in its interpretation of the Constitution and development of a new legal doctrine in the Baker case fits larger patterns. The solicitor general plays a major role in determining which cases the government will contest in the Supreme Court. As a result of this screening, in recent years the Supreme Court has granted approximately eighty percent of the petitions for a writ of certiorari submitted by the solicitor, as opposed to only three percent of those submitted by other lawyers across the country. Furthermore, the solicitor has won approximately eighty percent of his cases. In cases dealing with the Constitution in particular, the Court has shown special interest in the views of the SG, as he is informally called. The Justices have regularly invited him to file amicus briefs even in cases to which the United States is not a party.

In 1977 an executive-branch controversy about the solititor general's amicus filings led to the first official statement about the solicitor's role in the century-old history of the office. Offering then-conventional wisdom among constitutional lawyers, a Justice Department memorandum stated that the solicitor general should be relatively "independent" within the department and the executive branch. The memorandum gave four reasons for this view: "The Solicitor General must coordinate conflicting views within the Executive Branch; 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."

The transformation of the Supreme Court's docket during the years of both the warren court and the burger court led to a serious reconsideration of the solicitor general's role, however, and to a basic disagreement about the propriety of such "independence." The discussion was prompted by actions within, affecting, and officially taken by the solicitor's office during the administration of ronald reagan, as the administration sought to enact a vision of the Constitution largely at odds with views that had evolved in the legal mainstream since midcentury. Within the solicitor's office, for the first time, a deputy was hired to ensure that the government's filings conformed to the ideological views of the administration. The administration tolerated scant dissent from those views, and during a period of turmoil, it drove away a notable share of the office's nonpartisan career lawyers: the office suffered a fifty percent turnover in one year, or twice the normal rate. The first Reagan solicitor general, rex e. lee, a conservative whose advocacy was not aggressive enough to satisfy more influential administration officials, was forced out with this group. After leaving office, he said, "There has been this notion that my job is to press the Administration's policies at every turn and announce true conservative principles through the pages of my briefs. It is not. I'm the Solicitor General, not the Pamphleteer General."

In the Justice Department, in key cases like thornburgh v. american college of obstetricians and gynecologists (1986), dealing with the right to abortion, the solicitor general played only an academic role in determining whether the government would file a brief; the decision was essentially made by other officials in the department and the White House. Monitored by a Justice Department official who amounted to a "shadow solicitor" (William Bradford Reynolds, the assistant attorney general for civil rights as well as counselor to Attorney General Edwin Meese), the SG was changed from the legal conscience of the government into a partisan spokesman for the President.

At the height of this period, during the 1985 term of the Supreme Court, the solicitor general's advocacy drew explicit criticism in opinions written by Justices from across the legal spectrum on the moderately conservative Burger Court. In at least a dozen and a half cases, the Supreme Court cited instances of overstatements or inaccurate representations in SG briefs about legislative history, court holdings, and other basic tools of legal reasoning. In a televised interview not long after, Justice thurgood marshall commented, "They can't separate the political from the legal. They write political speeches and put the word "brief" on them." He added, "The solicitor general is the government's spokesman in this Court. It's always been true until the past decade or so. Now it seems as though he speaks only for the President, and not for the rest of the government."

The Reagan administration's explanation of these shifts was that its approach to the solicitor general's role and his aggressive conservative advocacy were required in order to persuade the Court to overturn a range of flawed liberal precedents. Eventually it seemed that forces at large in the rest of the legal culture, which were later especially apparent on the rehnquist court at the close of the divisive 1988 term, had also affected the solicitor's approach.

In particular, a breakdown in consensus about constitutional law, represented by the high percentage of Supreme Court cases decided by a bare one-vote majority (in the 1988 term, twenty-four percent of the total cases decided), seemed to some to challenge the notion that any expert could have a "clear vision of what the law requires," as the 1977 Justice Department memorandum claimed for the solicitor. This breakdown seemed to reemphasize the solicitor's primary duty of advocacy for the executive branch and of carrying to the Court the positions of the administration he serves.

To observers of the solicitor general's office who hold to the belief that the law can have a reassuring sense of continuity despite its contradictions, a measure of stability that contributes to social order, and an integrity provided by, among other things, the careful practice of legal reasoning, a significant way to work toward maintaining those qualities is by preserving an appropriate measure of independence for the solicitor general. Such independence represents an expression of faith in the idealized political neutrality of his office.

Still, as controversy about the nature of law has played out most dramatically in disagreements over how to interpret the Constitution, even to scholars the solicitor general's role has recently become heavily layered with political choices.

Lincoln Caplan

(see also: Attorney General and Department of Justice.)


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

Symposium 1988 The Role and Function of the United States Solicitor General. Loyola Law Review 21:1047–1271.