The Solicitor General and the Interests of the United States

Abstract

The Solicitor General has authority to represent the United States before the Supreme Court in cases “in which the United States is interested.” He also has broad power to supervise litigation conducted in the lower courts by lawyers representing the United States, its agencies, and its officials. The Solicitor General is often—and correctly—said to have special responsibilities to the Supreme Court, responsibilities different in kind from those of lawyers representing private clients. But the interesting and difficult questions about the Solicitor General’s role do not directly concern his responsibilities to the Supreme Court (“his” because no woman has yet been appointed Solicitor General—a situation that will surely change soon). Rather, the difficult questions have to do with the Solicitor General’s responsibilities as a member of the Executive Branch. To what extent is he, like most other high-ranking executive branch officials, properly concerned with carrying out the policies of the Administration in which he serves? Or should he, instead, remain aloof from Administration policies and concern himself only with the institutional interests of the federal government? And if the latter, how does one define the institutional interests of the federal government? Questions like these have arisen with some regularity in recent years. During the Reagan and Bush Administrations, for example, the President took the position that the Supreme Court’s decisions establishing a right to have an abortion were wrong and should be overturned. When cases reached the Supreme Court in which state abortion laws were challenged, the Solicitor General participated as amicus curiae and urged that Roe v. Wade be overruled.