No Striped Pants and Morning Coat: The Solicitor General in the State and Lower Federal Courts

Abstract

I am particularly appreciative of this invitation because it provides me with an opportunity to talk about a dimension of the Solicitor General's responsibilities that is very rarely discussed and even less understood. To the extent that there is public awareness of the fact that a Solicitor General exists- thanks to books like Lincoln Caplan's The Tenth Justice - that knowledge tends to be limited to his duties before the Supreme Court where he represents the United States in a wide variety of cases each Term. Indeed, the Solicitor General and his staff are true "repeat players" before the Court, arguing about two-thirds of all the cases heard each Term. Nothing captures the public imagination more, I suspect, than the thought of the Solicitor General standing up to argue before the Supreme Court in striped pants and morning coat, as tradition dictates. The Solicitor General has another major responsibility, however, beyond that of filing briefs and arguing cases in the Supreme Court. He is also charged with, to quote the relevant regulation, "[determining whether, and to what extent, appeals will be taken by the Government to all appellate courts ..." and "[determining whether a brief amicus curiae will be filed by the Government, or whether the Government will intervene, in any appellate court."