The Solicitor General has massive influence with the Court --- ensures the court says yes

Francis Biddle, SG from 1940 to 1941 and Attorney General from 1941 to 1945, put it well in his 1962 memoir: “The Solicitor General has no master to serve except his country.”37 The SG has been permitted his independence largely because of the belief, Biddle wrote, that “the ethic of his law profession framed in the ambience of his judgment and experience” should be the SG’s only guide.38 As Simon E. Sobeloff, SG from 1954 to 1956, wrote during his tenure, “My client’s chief business is not to achieve victory, but to establish justice.”39 Waxman said, in 1998, “Ultimately, it is the responsibility of the Solicitor General to ensure that the United States speaks in court with a single voice—a voice that speaks on behalf of the rule of law.”40

The SG’s independence and the responsibility it has rested on have been understood to justify notable deference from the Supreme Court, and the Court has shown that deference. It is not formal deference, amounting to a duty, as, for example, the Court has a duty under the United States Constitution’s Article III, Section 2, to “have original jurisdiction” in “all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party.”41 (In those cases, the Court functions as a trial, or fact-finding, court as well as an arbiter about the law’s application to the facts, as opposed to its usual role of hearing appeals in cases it chooses to hear.) 42 But it has been significant because of the symbiosis between the SG and the Court—interaction between two different entities in close association, usually to the advantage of both. Independence has allowed the SG’s office to resist giving in to pressure from political appointees in the Justice Department by saying that, if the SG’s office took a politically motivated position those appointees pressed, the Court would criticize the office and undermine its credibility.

Based on that symbiosis—the view that the SG’s independence served the interests of the Court and the law—the Court has long treated the SG and lawyers in the office more favorably in general than any other advocates. For the past century, the SG and the SG’s office have been the most privileged lawyers in dealings with the Court, right up to the present day. As Covert and Wang explain, in 1957 the Supreme Court first made a “call for the views of the Solicitor General,”43 known universally as “CVSG.” In the past ten terms of the Court, not counting the uncompleted current one, the Court has asked the SG’s office for its views an average of 20 times a term, ranging from 16 to 25 times, in cases where the government is not a party at the writof-certiorari stage, when the Court is considering whether to hear argument in a case.44 It rarely asks other lawyers for their views.