For Whom Does The Solicitor General Work?

The “takeovers” of district attorneys’ offices by running, and sometimes getting elected, progressive prosecutors was a remarkably smart plan. It was an office of little interest to most, ripe for the picking. It put the reins of exceptional power in the hands of activists whose goal was to do the opposite of what the job was previously understood to be.

It crosses some significant lines when prosecutors believe they are empowered to ignore legislators and laws, using the power of the office to pursue their personal, often radical, agenda rather than the ministerial tasks of enforcing the law that separation of powers would mandate they do, but then again, it wasn’t as if they didn’t say that’s what they were going to do before they were elected to office.

In a curious post at the new anti-carceral site Inquest, two Yale law grads* have proposed what appears to be the next logical step in this takeover of the prosecution.

The Office of the Solicitor General is little-discussed outside of elite appellate circles, but its influence is enormous in criminal matters. The office exerts that influence not only in cases brought by federal prosecutors, but also in many cases that percolate up to the Supreme Court through state courts — that is, cases where the federal government isn’t even a party to the dispute. And that is because the solicitor general wields singular sway by jumping into cases as an amicus curiae — literally, as a “friend” of the court — by filing an amicus brief and seeking permission to argue.

Anyone can file an amicus brief at the court, but the justices must affirmatively permit a non-party litigant to argue in a case. As we document in a recent article in the Vanderbilt Law Review, the justices grant that privilege almost exclusively to the solicitor general. Expert Supreme Court litigators we interviewed for that piece told us repeatedly that they believed that the traditional conception of the solicitor general as the Supreme Court’s “tenth justice” was one of the main reasons the court permits the solicitor general to argue as an amicus so frequently. (Paragraph break added for readability.)

The SG plays two roles, one performing the advocacy services required for cases in which the United States is a party and the other sticking its nose into cases where the issue at hand is of concern to the government, even if it’s not a party. Unlike other amici, the SG’s position is taken with great seriousness by the Court. After all, the SG speaks for a nation rather than merely an interest group.

The argument proffered is that the SG has traditionally taken the pro-prosecution side in criminal appeals before the Supreme Court. Before leaping to any assumption, it’s worth recognizing that this comes as no surprise, as the nature of the system is inherently conservative, the heavy burden being on the party seeking to change the system to demonstrate that its position will both be an improvement on the current state of the law and won’t wreak havoc with the stability of the law by introducing a new tweak that will create new problems. Even though what exists may be bad, that doesn’t mean change won’t make it worse, so even a bad but stable jurisprudence is better than a bad (or worse) but unstable jurisprudence.

But what if the Solicitor General was of the mind to become more activist against incarceration and used the power of the office, the power of a nation, to side with activists rather than the prosecution?

By federal statute, the solicitor general’s sole charge is to represent the so-called “interests of the United States,” an amorphous concept that the solicitor general has tremendous discretion to define. A solicitor general committed to containing the damage of decades of mass incarceration should simply stay out of many more state criminal cases, recognizing that these cases do not implicate federal interests….

And when the solicitor general does feel that the court should hear the federal government’s perspective in a criminal case to which it’s not a party, he or she should recognize that the interests of the United States do not necessarily favor prosecutors….

Going forward, if a solicitor general’s supposed commitment to “doing justice” is to be taken seriously, he or she should account for the ways in which increased prosecution and mass incarceration harm society when considering whether to defend a lower court’s judgment or support a state or local government as an amicus….

What is tacitly argued is that the position taken by the SG should reflect the SG’s personal view of “justice” rather than the position of the president or the attorney general. This may well mean if the SG doesn’t like something Congress has done, the SG should feel empowered to use the gravitas of the office to argue against it before the Supreme Court. The implicit view is that if the SG was an anti-carceral activist, then the official legal position of the United States should be the SG’s personal view.

While the Solicitor General is given substantial discretion in the performance of the duties of office, should it be unfettered by the policies of those who are above the SG in the government hierarchy? Is the SG a lone eagle, accountable to no one with powers to not only reject any duty to the president and congress, but defy them when the SG disagrees with their decisions?

Like district attorneys, the contention is that by capturing a few “chokehold” positions, activists can radically change the system. It’s a lot easier to undo Congress’ mischief by having the SG argue that duly enacted laws are unconstitutional, for example, than it is to get enough progressive Dems elected to seize control of Congress. Why put all that effort and energy into a cause that will almost certainly fail when the placement of one person in one post will not only do the trick, but do it with far greater certainty and effectiveness?

Of course, what that also means is that the job of Solicitor General, of representing the interests of the United States as determined by those elected to make such decisions, leaves the majority of a nation without an advocate before the Supreme Court, leaving it entirely in the hands of the SG to decide for a nation what its legal position should be.

It’s a smart plan if it can be accomplished, and now that progressive district attorneys are a thing, will SG be the next office to seize?

*The authors of the post, Darcy Covert and Annie J. Wang, graduated Yale law in 2020. Covert is a public defender in Seattle, and no job is noted for Wang.

10 thoughts on “For Whom Does The Solicitor General Work?

  1. B. McLeod

    The SG also plays a major gatekeeper role on federal agency appeals. No approval from the SG, no appeal of a loss in federal district court. This provides a less public mechanism for killing agency positions initiated under prior administrations.

    1. SHG Post author

      This was always inherent in the job when administrations change and the new admin wants old agency policy to die a brutal but quiet death.

  2. Denverite

    Ah the academy. C- for missing the obvious results of this thought experiment. First question not asked by the authors — why is the SG viewed as important for its views on non federal cases? Because it doesn’t do what they propose (or at least not very often). Such a change will not operate in an all other things being equal world as this article apparently supposes. If their proposal is adopted and the SG becomes an “activist” the court will very rapidly cease giving credence to its non-federal suggestions of interest.

  3. Paleo

    If the solicitor general goes progressive will I be able to steal from my local Texas CVS with impunity? Will that program go nationwide?

  4. Anonymous Coward

    The authors seem to have handwaved the problem of getting their chosen one actually into office. The Solicitor General is a Presidential appointee who must be confirmed by Congress so a “progressive” SG has be acceptable to both the current administration and a Senate majority. That seems a lot harder than getting a DA elected.

    1. SHG Post author

      I think the effort here is directed at pushing Biden’s new SG, Stanford lawprof Elizabeth Prelogar, to act more independently and further left by rallying the support.

  5. Rengit

    If the SG were indeed to “go rogue” in exercising independent judgment and become much more anti-carceral, activist, pro-defense, etc, once confirmed, probably much more so in that direction than the President that appointed them and the Congress that confirmed them, couldn’t the President simply remove the SG? Local DAs have terms of office, the efforts to get a recall (if available) are often onerous, and the main electoral contest for them is the Democratic primary (primaries being much more ripe for activist takeover because of money and voter turnout), making the “progressive prosecutor” strategy viable.

    None of this applies to the Solicitor General. If the SG’s office were to, for example, take the position that the illegal distribution of amphetamines, cocaine, opioids, and assorted narcotics should be subject to lighter sentencing despite the views of Congress, I can’t see how the President, under pressure from voters in both parties and from Congress, wouldn’t oust the SG given that the public generally doesn’t favor anti-carceral solutions for serious drug trafficking. And the Solicitor General taking very unpopular positions that reflect their independent conception of justice is different than the little-known OCR at the Department of Education releasing the Title IX letter; the former is much more high-profile than the latter.

Comments are closed.