The solicitor general is an official of the U.S. Justice Department who argues cases in front of the U.S. Supreme Court on behalf of the government. Appointed by the president, he or she also is responsible for deciding which government cases are argued before the Supreme Court. Since the position was established in 1870, the solicitor general has worked in close concert with the Supreme Court and is sometimes known as the "tenth justice." In recent years, those who hold the position have been more inclined to serve as an advocate in the Supreme Court for the policies of the administration in office.
Congress created the office of the solicitor general, or OSG, in 1870 at the same time as when it created the Department of Justice. The main responsibility of the office, as intended by Congress, was to assist the Attorney General whenever the government had a direct stake in litigation or if there was a legal question being decided which would have significant indirect impact on the government. While they argued occasional cases in other circumstances, those who have held the office after 1950 have generally concentrated on arguing government cases in front of the Supreme Court.
Although the solicitor general gets the most notoriety for the cases he or she argues in the Supreme Court, an equally important part of the job is deciding which cases make it that far. The person who is appointed to the post must decide which of the many writ of certiorari petitions filed by various government agencies are worthy enough to submit to the Court. That discretion keeps the court from hearing unnecessary cases and strengthens the relationship between the OSG and the court.
Another reflection of that close relationship is the fact that the Supreme Court will sometimes ask the solicitor general for help in non-governmental cases in the form of friend of the court briefs. The solicitor general also will show deference to the court by the practice of "confessing error." Confessing error occurs when the government wins a case in a lower court that the OSG determines may have been a faulty decision, and thus requests that the Supreme Court review the case and possibly overturn the decision.
This special relationship between the solicitor general and the Supreme Court is occasionally subordinated to the responsibility the office has to the administration who appointed him or her to the job. The modern political climate in the United States often requires the OSG to be at the forefront of advancing the administration's policies before the court. Debate therefore exists about whether the OSG is an independent position that should help the Supreme Court serve the interests of the law first and foremost or whether it should be a political weapon wielded by the president.
By Jim B.