|Solicitor General of the United States|
|United States Department of Justice|
|Style||Mr. or Madam Solicitor General|
|Reports to||United States Attorney General|
|Seat||Supreme Court Building and Department of Justice Headquarters|
with Senate advice and consent
|Constituting instrument||28 U.S.C. § 505|
|First holder||Benjamin Bristow|
|Deputy||Principal Deputy Solicitor General|
The solicitor general of the United States, the fourth-highest ranking official within the United States Department of Justice, represents the federal government in cases before the U.S. Supreme Court. Elizabeth Prelogar has served in the role since October 28, 2021.
The solicitor general is appointed by the president and reports directly to the U.S. Attorney General.
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.
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.
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, Thurgood Marshall, and Elena Kagan. Some who have had other positions in the Office of the Solicitor General have also later been appointed to the Supreme Court. For example, Chief Justice John Roberts was the principal deputy solicitor general during the George H. W. Bush administration and Associate Justice Samuel Alito was an assistant to the solicitor general. The last former solicitor general to be successfully nominated to the court was Justice Elena Kagan. 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. Eight 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.
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 the 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.
The Supreme Court has also occasionally invited a state attorney general to express a view on a petition related to that state. In 2009, for the first time, the invitation was directed instead to a state solicitor general, James Ho of Texas, earning the request the nickname "CVSG-Texas."
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, although Elena Kagan, the first woman to hold the office on other than an acting basis, elected to forgo the practice.
During oral argument, the members of the Court often address the solicitor general as "General." Some legal commentators such as Michael Herz and Timothy Sandefur 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.
|Benjamin Bristow||October 11, 1870||November 15, 1872||Ulysses Grant|
|Samuel Phillips||December 11, 1872||May 1, 1885|
|John Goode||May 1, 1885||August 5, 1886||Grover Cleveland|
|George Jenks||July 30, 1886||May 29, 1889|
|Orlow Chapman||May 29, 1889||January 19, 1890||Benjamin Harrison|
|William Taft||February 4, 1890||March 20, 1892|
|Charles Aldrich||March 21, 1892||May 28, 1893|
|Lawrence Maxwell||April 6, 1893||January 30, 1895||Grover Cleveland|
|Holmes Conrad||February 6, 1895||July 1, 1897|
|John Richards||July 6, 1897||March 16, 1903||William McKinley|
|Henry Hoyt||February 25, 1903||March 31, 1909||Theodore Roosevelt|
|Lloyd Bowers||April 1, 1909||September 9, 1910||William Taft|
|Frederick Lehmann||December 12, 1910||July 15, 1912|
|William Bullitt||July 16, 1912||March 11, 1913|
|John Davis||August 30, 1913||November 26, 1918||Woodrow Wilson|
|Alexander King||November 27, 1918||May 23, 1920|
|William Frierson||June 1, 1920||June 30, 1921|
|James Beck||June 1, 1921||May 11, 1925||Warren Harding|
|William Mitchell||June 4, 1925||March 5, 1929||Calvin Coolidge|
|Charles Hughes||May 27, 1929||April 16, 1930||Herbert Hoover|
|Thomas Thacher||March 22, 1930||May 4, 1933|
|James Biggs||May 5, 1933||March 24, 1935||Franklin Roosevelt|
|Stanley Reed||March 25, 1935||January 30, 1938|
|Robert Jackson||March 5, 1938||January 17, 1940|
|Francis Biddle||January 22, 1940||September 4, 1941|
|Charles Fahy||November 15, 1941||September 27, 1945|
|Howard McGrath||October 4, 1945||October 7, 1946||Harry Truman|
|Philip Perlman||July 30, 1947||August 15, 1952|
|Walter Cummings||December 2, 1952||March 1, 1953|
|Simon Sobeloff||February 10, 1954||July 19, 1956||Dwight Eisenhower|
|Lee Rankin||August 4, 1956||January 23, 1961|
|Archibald Cox||January 24, 1961||July 31, 1965||John F. Kennedy|
|Thurgood Marshall||August 11, 1965||August 30, 1967||Lyndon Johnson|
|Erwin Griswold||October 12, 1967||June 25, 1973|
|Robert Bork||June 27, 1973||January 20, 1977||Richard Nixon|
|January 20, 1977||March 4, 1977||Jimmy Carter|
|Wade McCree||March 4, 1977||January 20, 1981|
|Rex Lee||August 6, 1981||June 1, 1985||Ronald Reagan|
|Charles Fried||June 1, 1985
Acting: June 1, 1985 – October 23, 1985
|January 20, 1989|
|January 20, 1989||May 27, 1989||George H. W. Bush|
|Ken Starr||May 27, 1989||January 20, 1993|
|January 20, 1993||June 7, 1993||Bill Clinton|
|Drew Days||June 7, 1993||June 28, 1996|
|June 28, 1996||November 7, 1997|
|Seth Waxman||November 7, 1997||January 20, 2001|
|January 20, 2001||June 13, 2001||George W. Bush|
|Ted Olson||June 13, 2001||July 13, 2004|
|Paul Clement||July 13, 2004
Acting: July 13, 2004 – June 13, 2005
|June 2, 2008|
|Gregory Garre||June 2, 2008
Acting: June 2, 2008 – October 2, 2008
|January 20, 2009|
|January 20, 2009||March 20, 2009||Barack Obama|
|Elena Kagan||March 20, 2009||May 17, 2010|
|May 17, 2010||June 9, 2011|
|Don Verrilli||June 9, 2011||June 25, 2016|
|June 25, 2016||January 20, 2017|
|January 20, 2017||March 10, 2017||Donald Trump|
|March 10, 2017||September 19, 2017|
|Noel Francisco||September 19, 2017||July 3, 2020|
|July 3, 2020||January 20, 2021|
|January 20, 2021||August 11, 2021||Joe Biden|
|August 11, 2021||October 28, 2021|
|Elizabeth Prelogar||October 28, 2021||present|
((cite web)): CS1 maint: archived copy as title (link)