The Office of the Solicitor General OSG

When Congress created the Justice Department in 1870 it also created a new officer, the Solicitor General, to take over the Attorney General's original job of arguing the government's cases before the Supreme Court. The office has stayed small and specialized ever since. A staff of about twenty lawyers, among the most sought-after positions in American law, handles every case in which the United States is a party before the Court and decides which of the government's losses in the lower courts to appeal at all. By tradition its lawyers still argue in morning coats.

The Solicitor General's power lies in that gatekeeping. Federal agencies and U.S. Attorneys cannot appeal an adverse ruling to a court of appeals, let alone the Supreme Court, without the office's permission, which it grants sparingly to protect the government's credibility. When the Court considers whether to hear a case that affects federal interests, it often invites the Solicitor General's views, and those briefs are followed more often than not. The office also decides when the government will confess error, telling the Court that a lower court ruled in the government's favor wrongly, a practice that has earned it a reputation for candor the justices reward.

The Solicitor General is nominated by the President and confirmed by the Senate, ranks fourth in the department after the Attorney General, Deputy, and Associate, and has been a stepping stone to the Court itself. William Howard Taft, Robert Jackson, Thurgood Marshall, and Elena Kagan all held the post. Its lawyers argue two thirds or more of the cases the Court hears each term, and its win rate, historically above sixty percent, far exceeds that of any private advocate. The office's positions are supposed to reflect the long-term legal interests of the United States rather than the politics of the moment.

That ideal is contested in every administration, since the office must defend the President's policies and also preserve the Court's trust. Solicitors General have switched the government's position on major questions after elections, drawing criticism that the office has become more political. The rise of emergency applications on the Court's shadow docket, many of them filed by the Solicitor General seeking to lift lower court injunctions against federal policies, has made the office a more constant presence at the Court and a more visible actor in political fights.