Today's listener question: Can you explain the role of the Solicitor General and how if at all that position has changed over time? Read on, or listen to this short podcast episode for the answer.
We spoke with Amy Steigerwalt, Professor of Political Science at Georgia State University, to find the answers.
"The solicitor general has two main jobs," she explained. "The solicitor general, number one, represents the United States in front of the U.S. Supreme Court whenever there is a case that affects the interests of the U.S. And second, the solicitor general exercises control over all of the various cases, again, influencing the United States as a party and determines which of those cases should potentially be appealed to the U.S. Supreme Court."
What you need to know is that the Solicitor General is a lawyer for the U.S. government who is appointed by the President. Congress established the Solicitor General’s office in 1870. For a government office, it’s pretty small - there are about twenty lawyers, four of them deputy solicitors general. It’s a highly competititve job to achieve, because occasionally other lawyers in the office get to argue before the Supreme Court. It’s the only office that the Constitution requires that its holder be “learned in the law."
"A lot of times the solicitor general is known as the quote unquote 10th Justice," Amy says, "the idea being that they are there to offer views about what the president as, of course, the head of the executive branch and sort of the head of state for the United States, feels about issues. And so they also take on a particular role in that they are not simply there as a party to certain cases, but sometimes will actually be asked explicitly by the Supreme Court to offer their views on cases where they're not a party."
The Solicitor General is influential. In part because they’re able to consult with the attorney general and others in the executive branch to determine what the United States' government’s position on something is, what the actual laws are that pertain to a case. They can help to determine something called a writ of certiorari, which is the order by which a higher court hears a lower court’s case.
"Certiorari goes up when the solicitor general recommends that it should be granted and says, yes, this is an important legal issue that the United States feels the court needs to decide on. The likelihood of a case being decided in favor of the United States goes up when the solicitor general writes. So the solicitor general also appeals a case to the Supreme Court. They are much more likely to accept it. In general, the solicitor general's win rate is incredibly high in front of the Supreme Court," says Amy.
For those who fear a potential blurring of lines between the Executive and Judicial branches within this role, Amy says the Solicitor General is essentially bound to integrity lest the job lose its influence.
"There is a high degree of trust that exists between the Supreme Court and the solicitor general's office that the solicitor general is giving those opinions based upon the law," says Amy. "If the solicitor general abuses that trust, the ramifications for the United States when it now argues in front of the Supreme Court are going to be huge. If they bring a case to them and say, 'you have to hear this, this is super important' and the justices read it and say, 'this is terrible, have you lost your mind? This is the worst legal argument we've ever seen,' it then means the next time they're not going to take them as seriously. And so there's this kind of long standing historical trust that is there that solicitor generals need not to violate because the ramifications are really very serious for the next case."
The person currently serving as Solicitor General, Jeffrey B. Wall, has yet to be confirmed by the Senate. He stepped into the role after Noel Francisco left the job in July of 2020.
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