The Thirty-Fifth Law Clerk

Abstract

The advocate must learn to live in the tension between what the legal precedents are and what he and his client would like them to be. For the Solicitor General, who briefs and argues the United States cases before the Supreme Court, every aspect of this tension is heightened: his client is the United States, his court is the Supreme Court, and his precedents are the Court's own. Moreover, his responsibility is greater. Because he speaks for the executive branch, the Court weighs his words more heavily. Someday a thoughtful and intelligent book will be written about the Solicitor General and this tension. Lincoln Caplan's The Tenth Justice: The Solicitor General and the Rule of Law1 is not it. The Tenth Justice has three themes. The first is that the Office of the Solicitor General, until quite recently, has been largely independent. Caplan's definition of independent as applied to the Solicitor General is somewhat obscure, but it seems to have two elements: first, that the Solicitor General should have only limited contact with top administration officials; and second, that the Solicitor General need respond in only a limited way to the goals of the administration. Thus, Caplan believes that the Solicitor General historically has acted as a