28 October 2010

The Role of the Solicitor General

 

An artist’s drawing depicts then-U.S. Solicitor General Elena Kagan presenting the government’s case before the Supreme Court.

An artist’s drawing depicts then-U.S. Solicitor General Elena Kagan presenting the government’s case before the Supreme Court.

By Elena Kagan, associate justice of the Supreme Court, former solicitor general of the United States

I am very pleased to have this opportunity to describe to a distinguished international audience the role of the Office of the Solicitor General in the United States.

The solicitor general’s office represents the United States Government in cases before the Supreme Court and supervises the handling of litigation on behalf of the government in all appellate courts.

Each year, the office participates in three-quarters or more of the cases that the Supreme Court considers. When the United States Government is a party, a member of the solicitor general’s office argues on its behalf. The cases are quite varied and may entail defending the constitutionality of a statute passed by Congress, asserting the legality of an executive agency’s policy decision, or defending a conviction in a federal criminal case.

In cases in which the United States is not a party, the solicitor general’s office often participates as a “friend of the Court,” or amicus curiae, and advises the Court of the potential impact of the case on the long-term interests of the United States. Sometimes the solicitor general’s office requests permission to participate as an amicus curiae, and sometimes the Court actually solicits the opinion of the United States Government by inviting the solicitor general to submit a brief.

By virtue of its institutional position, the Office of the Solicitor General has a special obligation to respect the Supreme Court’s precedents and conduct its advocacy with complete candor. On occasion, the solicitor general will even confess error when she believes that the position taken by the government in the lower courts is inconsistent with her understanding of what the Constitution and laws require.

In addition to litigating cases in the Supreme Court, the Office of the Solicitor General supervises litigation on behalf of the government in the appellate courts. When the government receives an adverse ruling in the trial court, the solicitor general determines whether the government will appeal that ruling. Similarly, the solicitor general decides whether to seek Supreme Court review of adverse appellate court rulings. By controlling which cases the government appeals, the solicitor general’s office maintains consistency in the positions that the United States Government asserts in cases throughout the nation’s judicial system.

The Office of the Solicitor General is vital not only to ensuring that the interests of the United States Government are effectively represented in our courts, but also, by ensuring the fairness and integrity of the government’s participation in the judicial system, to maintaining the rule of law in our democracy.

As solicitor general, Elena Kagan was appointed by President Obama and reported to the Attorney General in the U.S. Justice Department.

(This is a product of the Bureau of International Information Programs, U.S. Department of State. Web site: http://www.america.gov)