The Solicitor General of the United States: The Tenth Justice or a Zealous Advocate?

Abstract

The federal government loses hundreds of cases in the federal courts of appeals each year, but the Solicitor General will select only a handful of those cases-just fifteen or so in recent years-to petition the Supreme Court to review. Acting as the final “decider” on the overwhelming majority of federal appeals, the Solicitor General has a vast, and under-scrutinized, amount of discretion over the federal government’s legal agenda.

This paper argues that the Solicitor General should behave more zealously in his advocacy at the petition stage, which will almost certainly require him to file more cert. petitions each year. By mimicking the decision making of the Supreme Court as he currently does, the Solicitor General is insufficiently attentive to his role as an advocate and has improperly appropriated a judicial function for himself within the executive branch. This paper also addresses concerns about the credibility of the Solicitor General and the scarce resources of his Office that may arise if he were to change his petitioning strategy. Ultimately, neither concern should inhibit the Solicitor General from being less restrictive in petitioning the Supreme Court.

Keywords: solicitor general, certiorari, supreme court, cert. petitions, government lawyering, professional responsibility