It’s been a busy week for a major player at the Supreme Court. This Wednesday, Donald Verrilli, Jr., the U.S. Solicitor General, stood before the Court and argued the latest case on the Affordable Care Act. On a more frivolous note, on laptop screens across the country, “House of Cards” viewers got to watch some Supreme Court advocacy by Frank Underwood’s brilliant and ambitious Solicitor General, Heather Dunbar. It seems like a good time for a primer on what exactly the Solicitor General (SG’s) office is, and the key role it occupies in the Supreme Court — one so important that the SG is often called the “tenth justice.”
At the broadest level of generality, the SG’s office is responsible for determining which cases the United States government will appeal. While this involves scrutinizing cases from their inception in the trial court, most of the SG’s business is taken up representing the government before the Supreme Court. Indeed, the SG is the most common repeat player before the Court, and its existence predates even the idea of a specialized Supreme Court bar.
The attorneys of the SG’s Office have cultivated the respect of the Justices on the Court, and work hard to present a reasoned argument whenever they are called upon to do so. According to a study by law professor Richard Lazarus, the SG’s Office enjoys unparalleled success at each stage of the Supreme Court process. Attorneys who leave the SG’s Office become some of the best specialists in Supreme Court private practice, and many of them go on to become federal judges. Indeed, many Solicitors General have gone on to become Justices of the Supreme Court. Most recently, Justice Elena Kagan served a little more than a year as the Solicitor General before being nominated to the Court by President Obama in 2010. No spoilers for “House of Cards,” but Solicitors General are often well-respected and well-connected individuals with good political savvy. Justice Kagan is known as one of the consensus-builders on the Court, and her practice as the SG surely informs her ability to take positions in her opinions that will attract the support of a majority.
In addition, the Solicitor General’s Office occupies an odd place in the political power structure of Washington. Although the SG is a political appointee and a member of a president’s administration, they have historically been given a large degree of independence. The Office is tasked with defending laws passed by previous administrations as well as the current one, and it often reaffirms legal arguments that it made under earlier presidents, regardless of political affiliation.
As Simon Sobeloff, a Solicitor General under President Eisenhower, put it: “The Solicitor General is not a neutral, he is an advocate; but an advocate for a client whose business is not merely to prevail in the instant case. My client’s chief business is not to achieve victory, but to establish justice.” To that end, the SG’s Office meets with agencies that may have interests in cases coming before the Court and determines which arguments get made to the Justices. Even where agencies have directly contrary opinions, the SG is empowered to iron out the official position of the government. In most cases in which the government is a party, then, the Office has a national policymaking role as it determines what the Court ultimately hears.
The Solicitor General’s Office also has an unusually wide purview in matters before the Court. It is permitted to file briefs in cases where the United States has a strong interest, even if the government is not a party to the case. In fact, it even has the power to request that the Court grant it argument time in those cases. Although the SG’s time cuts into the allotment of the party with whom it agrees, seasoned Supreme Court advocates rarely mind: The SG’s involvement on a side measurably increases that side’s chances of success.
Finally, the Solicitor General has the unique power to “confess error.” While attorneys have an ethical duty to zealously advocate on behalf of their clients, the scope and force of the SG’s position allows the Office to admit — typically to the Supreme Court, but sometimes to lower appellate courts — that it won a case below that it shouldn’t have, and urge a reversal. Although occasionally unpopular with prosecutors and other administration officials, this practice has been held up as an example of the SG’s special duty of candor to the Court. In many ways, the ability to confess error is the highest level of prosecutorial discretion, and a concrete example of the SG’s mandate to ensure that justice is done. It is a rare enough thing to admit fault, either in the real-life Washington, D.C., or the fictionalized version in “House of Cards.”
Michael Mestitz is the President of the Stanford Law Review. Chelsea Priest is one of the Stanford Law Review’s Managing Editors. Contact them at [email protected] and cayres@ stanford.edu.