Role of the Solicitor General ( 1977 )

Septem ber 29, 1977
77-56 MEMORANDUM OPINION FOR THE
ATTORNEY GENERAL
Role of the Solicitor General
The purpose of this memorandum opinion is to discuss (1) the institu­
tional relationship between the Attorney General and the Solicitor
General, and (2) the role that each should play in formulating and
presenting the Government’s position in litigation before the Supreme
Court.
I
The Judiciary A ct of 1789 created the Office of the Attorney Gener­
al and provided that the A ttorney General would prosecute and con­
duct all suits in the Supreme Court in which the United States was
“concerned.” A ct of September 24, 1789, ch. XX, § 35, 1 Stat. 73. The
Office o f the Solicitor General was created in 1870. A ct of June 22,
1870, ch. CL, §2, 16 Stat. 162. The statute provided that there should
be in the Departm ent of Justice “an officer learned in the law, to assist
the A ttorney General in the performance o f his duties, to be called the
Solicitor General . . and it provided further that the Attorney
General could direct the Solicitor General to argue any case in which
the Government had an interest. See Fahy,“The Office of the Solicitor
General,” 28 A.B.A.J. 20 (1942).
The statute was enacted at the behest of Attorney General Henry
Stanbery. Mr. Stanbery had argued that his work load was great and
that he needed assistance in preparing opinions and arguing cases before
the Supreme Court. He suggested that a new office be created for the
purpose o f discharging these functions. Congress, perceiving that the
measure would make it possible to discontinue the expensive practice of
retaining special counsel to represent the Government in cases argued
before the Supreme Court, acceded to his request. Id.In 1878 the language of the statute was partially revised. The lan­
guage o f the revision has survived to the present day. The modern
statute, codified at 28 U.S.C. § 518, provides in pertinent part:
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(a) Except when the Attorney General in a particular case directs
otherwise, the Attorney General and the Solicitor General shall
conduct and argue suits and appeals in the Supreme Court and
suits in the Court of Claims in which the United States is interest­
ed.
(b) When the Attorney General considers it in the interests of the
United States, he may personally conduct and argue any case in a
court of the United States in which the United States is interested,
or he may direct the Solicitor General or any officer of the
Department of Justice to do so.
The Department’s own regulations provide that the Solicitor General
performs his duties “subject to the general supervision and direction” of
the Attorney General. 28 CFR § 0.20. The same language is used to
describe the relationship between the Attorney General and the offices
that report directly to him, such as the Office of Legal Counsel. The
Assistant Attorneys General in charge of the various divisions perform
their duties subject to the Attorney General’s supervision, but under the
direction of the Associate or Deputy Attorney General. From a legal
standpoint, the relationship between the Attorney General and the
Solicitor General would thus appear to be substantially the same as that
existing between the Attorney General and the Assistant Attorneys
General.
II
We think it plain from the language and history of the relevant
statutes that the Office o f the Solicitor General was not created for the
purpose of relieving the Attorney General of the responsibility for
formulating or presenting the Government’s case in litigation before the
Supreme Court. Congress simply intended to provide the Attorney
General with a learned helper who would perform these functions at
the Attorney General’s direction. We note in passing that at least one
Solicitor General has adopted this view publicly. See, Fahy, supra, at
21. We know of no public utterance by a Solicitor General to the
contrary. See, generally, Cox, “The Government in the Supreme
Court,” 44 Chi. B. Record 221 (1963), Sobeloff, “The Law Business of
the United States,” 34 Ore. L. Rev. 145 (1955); Stern, “Inconsistency in
Government Litigation,” 64 Harv. L. Rev. 759 (1951). The short of the
matter is that under law the Attorney General has the power and the
right to “conduct and argue” the Government’s case in any court of
the United States. 28 U.S.C. § 518(b).
III
Traditionally, however, the Attorney General has given the Solicitor
General the primary resonsibility for presenting the Government’s
views to the Supreme Court, and in the discharge of that function the
Solicitor General has enjoyed a marked degree of independence.
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Indeed, his independence has been so great that one Solicitor General,
Francis Biddle, was led to remark:
He [the Solicitor General] determines what cases to appeal, and the
client has no say in the matter, he does what his lawyer tells him,
the lawyer stands in his client’s shoes, for the client is but an
abstraction. He is responsible neither to the man who appointed
him nor to this immediate superior in the hierarchy of administra­
tion. The total responsiblity is his, and his guide is only the ethic of
his law profession framed in the ambience of his experience and
judgment. (F. Biddle, In Brief Authority 97 (1962).)
Because the question o f the “independence” of the Solicitor General
has a direct and important bearing upon the general question to which
this memorandum is addressed, we shall consider it in some detail.
Mr. Biddle’s statement suggests that the Solicitor General has en­
joyed two kinds of independence. First, he has enjoyed independence
within the Department o f Justice. It is he, of all the officers in the
Departm ent, who has been given the task of deciding what the Govern­
m ent’s position should be in cases presented to the Supreme Court. The
views of subordinate officers within the divisions of the Department are
not binding upon him, and the Attorney General has made it a practice
not to interfere. With respect to his relation to the Attorney General,
we feel constrained to add, however, at the risk of repetition, that the
Solicitor General’s independent role has resulted from a convenient and
necessary division of labor, not from a separation of powers required by
law. M oreover, Francis Biddle may have overstated the case to some
degree. Under the relevant statutes, as noted, the Attorney General
retains the right to assume the Solicitor General’s function himself, if he
conceives it to be in the public interest to do so.
Secondly, the Solicitor General has enjoyed independence within the
executive branch as a whole. He is not bound by the views of his
“clients.” He may confess error when he believes they are in error. He
may rewrite their briefs. He may refuse to. approve their requests to
petition the Court for writs of certiorari. He may oppose (in whole or in
part) the arguments that they may present to the Court in those in­
stances where they have independent litigating authority.
The reasons for this independence are, for the most part, familiar:
First, it has been thought to be desirable, generally, for the Govern­
ment to adopt a single, coherent position with respect to legal questions
that are presented to the Supreme Court. Because it is not uncommon
for there to be conflicting views among the various offices and agencies
within the executive branch, the Solicitor General, having the responsi­
bility for presenting the views o f the Government to the Court, must
have power to reconcile differences among his clients, to accept the
views o f some and to reject others, and, in proper cases, to formulate
views of his own.
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Second, as an officer of the Court and as an officer of Government,
the Solicitor General has a special duty to protect the Court in the
discharge of its constitutional function. He protects the Court’s docket
by screening the Government’s cases and relieving the Court of the
burden of reviewing unmeritorious claims. He prepares accurate and
balanced summaries of the records in the cases that are presented for
review; and within the limits of proper advocacy, he provides the
Court with an accurate and expert statement of the legal principles that
bear upon the questions to be decided.
Third, as an officer who plays an important role in the development
of the law, he has a duty to protect the law from disorderly growth.
He is called upon to decide questions of “ripeness” in the most general
sense: on a case-by-case basis he must determine whether this is the
appropriate time for presenting this issue to the Supreme Court on this
record. See Cox, supra, at 226. In order to discharge that function, he
must have, among other things, the power to refuse requests for peti­
tions for certiorari and the power to decline to present the G overn­
ment’s views, as amicus, in cases in which the Government might
otherwise have an interest.
Finally, and most importantly, the Solicitor General has assumed an
independent status because of the prevalent belief that such indepen­
dence is necessary to prevent narrow or improper considerations (polit­
ical or otherwise) from intruding upon the presentation of the G overn­
ment’s case in the Nation’s highest Court. It was a Solicitor General,
Frederick W. Lehmann, who wrote that “the United States wins its
point whenever justice is done its citizens in the courts”; and the
burden of history is that justice is done most often when the law is
administered with an independent and impartial hand. The Nation
values the Solicitor General’s independence for the same reason that it
values an independent judiciary. The Solicitor General has been permit­
ted his independence largely because of the belief, as Mr. Biddle put it,
that “the ethic of his law profession framed in the ambience o f his
judgment and experience” should be his only guide.
IV
In what circumstances should the Attorney General exercise his right
to “conduct” litigation before the Supreme Court? To the extent that
the Solicitor General’s traditional role reflects a simple division of labor
within the Department, it is plain that the Attorney General may
exercise his prerogative whenever it is administratively convenient for
him to do so. The real question is to what extent he can intervene, in
individual cases, without doing violence to the important principles or
functions that have justified the Solicitor General’s independence
within the Government at large.
We have identified four such principles or functions: the Solicitor
General must coordinate conflicting views within the executive branch;
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he must protect the Court by presenting meritorious claims in a
straightforw ard and professional manner and by screening out unmeri-
torious ones; he must assist in the orderly development of decisional
law; and he must “do justice”—that is, he must discharge his office in
accordance with law and ensure that improper concerns do not influ­
ence the presentation of the Governm ent’s case in the Supreme Court.
In our opinion, there is no institutional reason why the Attorney
General could not, in individual cases, discharge all four of these
functions as well as the Solicitor General. However, in practice the
A ttorney General could never be sure that he was exercising the
independent judgment essential to the proper performance of those
functions if he acted alone without the advice o f an independent legal
adviser, i.e., the Solicitor General.
T he Attorney General is responsible for the objective and evenhand­
ed administration of justice independent of political considerations or
pressures. However, he is also a member of the President’s Cabinet and
responsible for advising the President on many o f the most important
policy decisions that are made in the executive branch. He is necessar­
ily exposed repeatedly to nonlegal arguments and opinions from other
Cabinet members. His is the difficult task of separating the different
factors that might properly be considered in his role as a policy adviser
from those relevant to his duties as the chief legal officer of the
Government.
The Constitution requires the President, and thus the Attorney Gen­
eral, to execute the laws faithfully. It requires them to follow the law,
even if that course conflicts with policy. For this reason alone, in our
view, the tradition of the “ independent” Solicitor General is a wise
tradition. It has arisen because it serves a useful constitutional purpose.
V ery simply, an independent Solicitor General assists the President and
the A ttorney General in the discharge of their constitutional duty:
concerned as they are with matters of policy, they are well served by a
subordinate officer who is permitted to exercise independent and expert
legal judgm ent essentially free from extensive involvement in policy
matters that might, on occasion, cloud a clear vision of what the law
requires. While it is doubtful whether either the President or the A ttor­
ney General could “delegate” to the Solicitor General the ultimate
responsibility for determining the Governm ent’s position on questions
o f law presented to the Supreme Court, as a matter of practice, in the
discharge o f their offices, they can allow themselves the benefit of his
independent judgment, and they can permit his judgment to be disposi­
tive in the normal course.
The dual nature of the A ttorney General’s role as a policy and legal
adviser to the President strengthens, in our view, the necessity for an
independent Solicitor General. To the extent the Solicitor General can
be shielded from political and policy pressures—without being unaware
o f their existence—his ability to serve the Attorney General, and the
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President, as “an officer learned in the law” is accordingly enhanced.
For this reason we believe the Solicitor General should not be subject­
ed to undue influence from executive branch officials outside the D e­
partment of Justice. The Solicitor General should not be viewed as
having final, essentially unreviewable authority in controversial cases,
because such a role would inevitably subject him to those policy pres­
sures that can obscure legal insights. The Attorney General, we believe,
reinforces the independence of the Solicitor General by allowing him­
self to act as the final legal authority in those small number of cases
with highly controversial policy ramifications. As such, the Attorney
General and not the Solicitor General will be the focus of policy
pressures from both within and outside the executive branch.
We do not believe that the Attorney General’s power to direct the
prosecution of cases in the Supreme Court should never be exercised,
but we do believe that the tradition of the independent Solicitor G ener­
al is one that should be preserved. We think that the Attorney General
can participate in the formulation of the Government’s position before
the Court in certain circumstances without doing violence to that
tradition; but, because of the value of the Solicitor General’s indepen­
dence, there are procedural and substantive considerations that should
guide and temper the exercise o f that power.
V
Procedural Considerations. Undoubtedly, the working relationship
between the Attorney General and the Solicitor General is one that
will vary from Administration to Administration in accordance with
the personalities of the individuals who hold these offices; but as we
have said, the traditional pattern is one of noninterference. From this
tradition we derive a rule of procedure: in our opinion, with respect to
any pending case, the Solicitor General should be given the opportuni­
ty to consider the questions involved and to formulate his own initial
views with respect to them without interference from the Attorney
General or any other officer in the Administration.
There are at least two reasons for following a procedure o f this kind.
First, the procedure ensures that the Attorney General (and the Presi­
dent) will enjoy the benefit o f the Solicitor General’s independent
judgment in every case. That independence would be compromised if
the Solicitor General were subjected to frequent advice or suggestions
from the President or the Attorney General before he is allowed to
formulate his own position. Second, this procedure helps to ensure that
the Attorney General will not exercise his supervisory powers gratu­
itously. No one can say what the Solicitor General’s position will be
before he has taken it.
This brings us to a related point. The Solicitor General should be
allowed to formulate a position with respect to pending cases, and he
should be allowed to act independently in the discharge o f that func­
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tion, but he should not be required to make his decision in an informa­
tional vacuum. He is not omniscient, and he should be free to consult
the various offices and agencies in the executive branch that may have
views on the questions presented by the case at hand. In fact, this is the
traditional practice. The Solicitor General does consult and is consulted
by other officers o f Government. Far from detracting from his inde­
pendent function, this practice enhances its value. It ensures that the
Solicitor General’s judgment will be informed judgment.
Substantive Considerations. Once the Solicitor General has taken a
position w ith respect to a pending case, that position will, in most cases,
become the Government’s position as a matter of course. However, in
some cases the Attorney General may need to determine whether or
not the Governm ent should adopt that position. Plainly, the Attorney
General, as well as the President, have the power to decline to adopt it,
but to exercise that power is to reject the Solicitor General’s independ­
ent and expert legal counsel in favor o f other legal advice or policy
considerations.
W e should make one observation at this point. We have said that an
independent Solicitor General assists the Attorney General and the
President in the discharge o f their constitutional duty to put law before
policy. It is our opinion that if the Solicitor General is to be of real
value in that regard, his judgm ent must be permitted to be dispositive in
the ordinary course. The Governm ent’s position should be changed by
the A ttorney General only in rare instances.
H ow does one identify the “rare instances” in which intervention by
the A ttorney General may be justifiable? We can offer no litmus test,
but we wish to make several observations that bear upon the question.
First, in our opinion, the mere fact that the Attorney General may
disagree with the Solicitor General over a question of law is not
ordinarily a sufficient reason for intervention in a given case. If the
Solicitor General has fallen into error, the Supreme Court will have an
opportunity to correct the error, and the Government’s ultimate inter­
est in a just result will be vindicated. If the Court upholds his position,
then all the better, for his legal judgment and not that of his superiors,
was correct. In either case, for all o f the reasons given above, the
potential benefit o f intervention is usually outweighed, in our view, by
the mischief inherent in it.
There may be a case in which the Attorney General is convinced
that the Solicitor General has erred so far in .th e legal analysis that
intervention is required. W e believe such cases will be quite rare, but
when they arise the Attorney General must follow the rule of law
himself and be guided by his own experience and judgment.
There is another category of questions that may be involved in cases
presented to the Supreme Court with respect to which the Attorney
General’s o r the President’s judgment may be essential. Our analysis
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turns upon the uncertain but traditional distinction between questions of
law and questions of policy.
All of the cases that are decided by the appellate courts can be said
to involve “questions of law” in a technical sense. The outcome in each
case must be justified by reference to rules or principles that are
prescribed in the Constitution, statutes, regulations, ordinances, or in
the previous decisions of the courts. In some cases, however, questions
of “policy” are integrally intertwined with questions of law. In other
cases the major decision may be a discretionary one such as filing of an
amicus brief when there has been no request from the Court for the
views of the Government.
The Solicitor General can and should enjoy independence in matters
of legal judgment. He should be free to decide what the law is and
what it requires. But if “law” does not provide a clear answer to the
question presented by the case before him, we think there is no reason
to suppose that he, of all the officers in the executive branch, should
have the final responsibility for deciding what, as a matter o f policy,
the interests of the Government, the parties, or the Nation may require.
To our knowledge, no Solicitor General has adopted a contrary view.
The short of the matter is that cases may arise in which questions of
policy are so important to the correct resolution of the case that the
principles that normally justify the Solicitor General’s independent and
dispositive function may give way to the greater need for the Solicitor
General to seek guidance on the policy question. Questions o f policy
are questions that can be effectively addressed by the Attorney Gener­
al, a Cabinet officer who participates directly in policy formation and
who can go to the President for policy guidance when the case de­
mands.
But the Attorney General and the President should trust the judg­
ment of the Solicitor General not only in determining questions of law
but also in distinguishing between questions o f law and questions of
policy. If the independent legal advice of the Solicitor General is to be
preserved, it should normally be the Solicitor General who decides
when to seek the advice of the Attorney General or the President in a
given case.
J ohn M . H arm on
Assistant Attorney General
Office o f Legal Counsel
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