“Presenting the Case of the United States As It Should Be”: The Solicitor General in Historical Context

Abstract

“Presenting the Case of the United States As It Should Be”: The Solicitor General in Historical Context Seth R Waxman* (bio) Seth R Waxman Seth Waxman is the Solicitor General of the United States. He delivered this paper at the Society’s Annual Meeting in June. Endnotes * This article is the printed version of a lecture delivered at the Supreme Court Historical Society’s Annual Meeting on June 1, 1998. The author gratefully acknowledges the assistance of David B. Salmons, a Bristow Fellow in the Office of the Solicitor General during October Term 1997, and David C. Frederick, an Assistant to the Solicitor General. 1. Eugene C. Gerhart, America’s Advocate: Robert H. Jackson 143 (1958); Lincoln Caplan, The Tenth Justice: The Solicitor General and the Rule of Law 171 (1987). 2. Caplan, supra note 1, at 261. 3. Act of June 22, 1870, ch. 150, § 2, 16 Stat. 162. 4. In addition to his offices in the Department of Justice, the Solicitor General has a working office in the Supreme Court building, located on the main floor in close proximity to the courtroom. 5. See, e.g., 8 Op. Off. Legal Counsel 183, 193–99 (1984); 40 Op. Att’y Gen. 158 (1942); 39 Op. Att’y Gen. 11 (1937); 38 Op. Att’y Gen. 252 (1935); 38 Op. Att’y Gen. 136 (1934); 36 Op. Att’y Gen. 21 (1929); 31 Op. Att’y Gen. 475, 476 (1919). 6. See Caplan, supra note 1, at 3. 7. Simon E. Sobeloff, “Attorney for the Government: The Work of the Solicitor General’s Office,” 41 A.B.A. J. 229, 229 (Mar. 1955). 8. Among the more comprehensive analyses are Caplan, supra note 1; “Symposium: The Role and Function of the United States Solicitor General,” 21 Loy. L.A. L. Rev. 1047 (1988); and Rebecca Mae Salokar, The Solicitor General: The Politics of Law (1992). 9. Act of Sept. 24, 1789, ch. 20, § 35, 1 Stat. 73, 93. That the Attorney General’s first enumerated duty has always been to represent the United States in the Supreme Court underscores the Attorney General’s close connection with Article III courts. This connection becomes even more pronounced when one considers that in the original bill of the Judiciary Act introduced in the Senate, the Attorney General was to be appointed by the Supreme Court, and the district attorneys by the district courts, rather than by the President. See 4 The Documentary History of the Supreme Court of the United States, 1789–1800 106–07 (Maeva Marcus & James R. Perry eds., 1992); Charles Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 Harv. L Rev. 49, 108–09 (1924). For a discussion of the brief legislative history regarding the change, see Susan L. Bloch, “The Early Role of the Attorney General in Our Constitutional Scheme: In the Beginning There was Pragmatism,” 1989 Duke L.J. 561, 570–72 &n.33. 10. As a result, all of the Attorney General’s opinions, letters, and briefs had to be written out in his own hand, or by staff provided at his own expense. See Homer Cummings & Carl McFarland, Federal Justice: Chapters in the History of Justice and the Federal Executive, 154–58 (1937); James S. Easby-Smith, “Edmund Randolph—Trail Blazer,” 127. BarAss’n D.C. 415, 419 (1945) (hereinafter cited as Easby-Smith, Edmund Randolph); Sewell Key, “The Legal Work of the Federal Government,” 25 Va. L. Rev. 165, 175–76 (1938). Moreover, because Congress had not even thought it necessary to provide the Attorney General with office space, for years the Attorney General served as an absentee, coming to the seat of government only when called on specific business. See James S. Easby-Smith, The Department of Justice: Its History and Functions 8 (1904) (hereinafter cited as Easby-Smith, Department of Justice). 11. Act of Sept. 24, 1789, ch. 20, § 35, 1 Stat. 73, 92–93. 12. Id.; see Cummings & McFarland, supra note 10, at 19; Easby-Smith, Department of Justice, supra note 10, at 5. 13. Letter from George Washington to Edmund Randolph (Sept. 28, 1789), reprinted in 30 Writings of George Washington 418–19 (John C...