Introduction

Many of the most important issues in American politics have been funneled through the Supreme Court. It may seem curious, then, to argue that we (as political scientists, journalists, lawyers, politicians, and office holders) exaggerate the power of the Court to make policy. What seems clear is that we tend to ignore or undervalue some of the Supreme Court’s significant work because the scope of the decisions is more circumspect, and the cases are less “exciting” (Pacelle, Curry, and Marshall 2011; Boddery 2019).

Landmark decisions like Roe v. Wade (1973), Obergefell v. Hodges (2015; same-sex marriages), and Dobbs v. Jackson Women’s Health Organization (2022) are vivid reminders that the Supreme Court is a central policy maker in American politics. But it is important to remember that for every landmark decision like Dobbs, the Court issues a dozen decisions like AMG Capital Management, LLC v. Federal Trade Commissioner (2021) and Boechler v. Commissioner of Internal Revenue (2022). The latter was a question regarding the procedures of the Internal Revenue Service (IRS). The former involved regulations coming from the Federal Trade Commission (FTC), an independent agency. Cases like AMG Capital and Boechler are more about standardizing the law and doctrine as well as resolving inconsistent decisions in the lower courts than making sweeping policy pronouncements. And each of these cases involved the Office of the Solicitor General.

The most active and successful of the litigants using the Supreme Court is the solicitor general (SG) of the United States (Ubertaccio 2005). The most successful litigants before the Supreme Court tend to be “repeat players” who have the expertise to act strategically, advancing the most promising cases with the goal of building a wall of favorable precedents (Galanter 1974). As the ultimate repeat player, the success rate of the Office of the Solicitor General (OSG) at getting cases accepted and winning on the merits is unparalleled. While the average litigant’s chances of successfully getting a writ of certiorari granted are roughly 3%, the OSG’s success rate of getting cases accepted is between 60 and 70%. Litigants (whose cases have been accepted) seeking to reverse the decision of the lower court on average win about two-thirds of the time. The solicitor general’s success when she challenges a lower court decision is three-quarters (about 8% better than average). For litigants who are trying to have the Supreme Court uphold the lower court decision, the success rate on the merits (for the cases accepted) averages about 33%. When the OSG is trying to have a favorable lower court decision upheld, its success rate is a remarkable 52% (about 19% better).

The solicitor general is a high-ranking official in the US Department of Justice who wields enormous impact over the law. The SG is a political appointment of the president but is charged with leading the litigation efforts of the government and for the public (Salokar 1992). The SG presides over the nation’s most prestigious and decorated “law firm.” The OSG only has about two dozen lawyers, but it has access to the resources of the Department of Justice and the US government. The OSG is responsible for almost all cases involving the US government. The OSG decides which cases the US government lost should be appealed to the Supreme Court and can enter other cases by filing an amicus curiae brief (Nicholson and Collins 2008).

Consider the range of litigation activity expected of the Office of the Solicitor General in a typical term. The OSG might be prosecuting an alleged criminal defendant, seeking to enforce a federal regulation or the levying of income taxes, upholding (or limiting) the rights and liberties of citizens, drawing boundaries between the authority of the legislative branch and that of the executive, or redefining the lines of federalism. The Supreme Court decides approximately 75 cases each term. The solicitor general is likely to be involved in over half of those cases (Cordray and Cordray 2010). And what is the SG doing? In some cases, the SG is trying to push public policy (likely in the direction wanted by the president). In others, the SG is trying to help the Court find a consistent position and structure precedent. Sometimes it is said that in such cases, the Court is more interested that the law is settled than that it is settled correctly, a core principle of stare decisis (Pacelle 2003).

Congress passed the Federal Judiciary Act of 1870, creating the Office of the Solicitor General to coordinate litigation, “represent the interests of the United States,” and assist the attorney general (AG; Black and Owens 2012). The act gave the solicitor general some of the authority that had formerly belonged to the attorney general.^[1] Control of government litigation had not been centralized under the attorney general. Indeed, many agencies had their own solicitors. The creation of the solicitor general was an attempt to establish centralization and coordination. The SG has become, in effect, what the attorney general is in name (Pacelle 2003).

The footprints of the solicitor general are typically found across the expansive legal terrain. While analysts may not agree on why, all concur that the OSG is quite successful in executing its work (Black and Owens 2012; McGuire 1998; Ubertaccio 2005). The US loses thousands of the approximately 50,000 cases involving an agency or government department decided in a year by the US Courts of Appeals—losses that the OSG could appeal to the Supreme Court. The OSG scrupulously reviews these adverse decisions and only brings the most promising cases that it thinks it can win (Salokar 1992; Pacelle 2003).

The importance of the OSG cannot be overestimated and is enhanced by the fact that the decisions of the Court create public policy and precedent. The influence of the OSG is a function of the span of its responsibilities and the range of its clients. Drew Days (1997–98, 681), who served as SG under President Bill Clinton, noted the difficult calculus for the office: “The Solicitor General’s client is one or more of the following nine entities: the people, the federal government, the administration he serves, the president, attorney general, executive branch departments and agencies, individual federal employees, independent regulatory agencies, and Congress.” The SG has a complicated task in helping stabilize the law while attending to the concerns of the president, Congress, the Supreme Court, and the agencies.

As a presidential appointment, the SG owes some fidelity to the administration’s designs. But the position requires the OSG to work closely with the Supreme Court in large part to standardize the law. There is a potential tension between pursuing the agendas of the president and the Court (Wohlfarth 2009). Despite the apparent demands on the SG, most studies of the OSG concentrate on the relationship between the solicitor general and the president and how the former can work for the latter. While previous research may exaggerate the influence of the president, it clearly underestimates the role the OSG plays in the “less important cases” (but see Boddery 2019; Gardner and Thrower 2023). In these cases, the OSG is more interested in helping settle the law. And we know very little about these cases because they are generally ignored.

Why should we be concerned about the solicitor general? First, the OSG is a vital component in understanding how the American government operates and how law and politics are intertwined. Second, the Supreme Court has become an important locus of policy change. Understanding the most influential force in the Court’s environment is critical. Third, it is important to understand the impact the office has and how it balances the need for stability and change. The OSG is very successful despite being tasked with numerous responsibilities and needing to satisfy a number of “clients.”

The study of litigation efforts and the OSG is alluring given the dynamics and relationship between law and politics and the enhanced power of the judicial branch. The results give us some clues as to how political the OSG has become and how effectively it balances its responsibilities. There have been scores of studies on the OSG, but we are still left with some missing pieces of the puzzle. One of the most pressing questions is who has the most influence over the solicitor general.

Ronald Chamberlain (1987, 386) argued that as a policy maker, “the solicitor general’s influence and decisions can have dramatic effects on the development of law and, at times, the course of history.” But it is important to remember that these are legal institutions as well. While many of the decisions of the OSG and the Supreme Court have important political implications, they are cast in a legal framework.

The president appears to be in the best position to influence the solicitor general by virtue of the appointment process. In contrast to agencies, Congress, lower courts, and even Supreme Court justices, the president can speak with one voice. Delineating the boundaries between policy making and imposing stability is not merely an academic exercise. It makes a difference if presidents are pulling the strings or if the SG can hold them at arm’s length. The SG can build respect and goodwill by hovering above the political fray. The inability to do so or the willingness to do the president’s bidding might undermine the OSG’s reputation.

Politics and law are at the intersection of the solicitor general’s responsibilities. Though presidents appoint the SG, they know that the office cannot simply do their bidding but must also facilitate the work of the Court (Wohlfarth 2009). As a presidential appointee, the SG might be expected to “carry water” for the administration, but only occasionally (Pacelle 2003). Part of the work of the president and the executive branch involves neutral law enforcement and is supposed to be above politics. Agencies need the permission of the SG to appeal adverse decisions but understand that they are one of the scores of supplicants seeking the same outcomes. The OSG is also responsible to Congress as it defends or interprets statutes (Lemos 2009).

The frequency of participation in front of the Court makes the SG an important ally of the justices, who rely on the office’s expertise to control their docket and help structure doctrinal development. Solicitors general expect to work primarily with the Court to standardize the law. Though the Court cannot remove the SG, it is the office’s most important audience (Cooper 1993). A solicitor general who has lost the respect of the Court is a liability for the administration. To get cases accepted and have success on the merits, the solicitor general must pay attention to the ideological composition of the Court (Bailey, Kamoie, and Maltzman 2005).

For their part, the justices and their clerks appreciate the quality of the SG’s work. As one justice’s clerk put it, “We jokingly referred to the SG’s petition as the answer sheet.…The solicitor general also knows all the catchwords, and they just know how to write a brief” (Perry 1991, 132–33). Thus, the office and the Court have developed “a tradition of mutual trust and respect” (Wilkins 1988, 1179–80). Cooper (1993, 71) claims, “As a consequence of this repeated reevaluation, the solicitor general can serve as a sort of legal brand name, offering some assurance of quality.”

Robert Bork, who served as SG under Presidents Nixon and Ford, maintained that “the Solicitor General…bears a special relationship to the Court. He owes it complete intellectual candor even when that impairs his effectiveness as an advocate” (Schnapper 1988, 1202). Rex Lee (1986, 597), Ronald Reagan’s first solicitor general, argued that the OSG “provides the Court from one administration to another—and largely without regard to either the political party or the personality of the particular Solicitor General—with advocacy which is more objective, more dispassionate, more competent, and more respectful of the Court as an institution than it gets from any other lawyer or group of lawyers.”

Goals of the Chapter

This chapter has three overriding goals. First, the chapter is designed to introduce you to the Office of the Solicitor General, discuss the roles the office plays, examine the ability of the OSG to balance law and politics, and evaluate its extraordinary success. The second goal is to examine the impact that the OSG has on the decisions of the Supreme Court. The third goal is to reverse the image and see which institutional actors and legal factors influence the solicitor general under which conditions.

Roles of the Solicitor General

It stands to reason that balancing the variety of potential clients complicates the work of the OSG. Those clients may have different goals and different allies and opponents. This can constrain the OSG. The Supreme Court and the solicitor general are involved in a joint enterprise to manage court dockets, construct judicial doctrine, and supervise legal policy change. It requires the SG to fulfill several roles.

Let’s start by distinguishing the various roles that the SG needs to play. The solicitor general appears to play four different roles: tenth justice, attorney general for law enforcement, attorney general as policy maker, and fifth clerk (Pacelle 2003). Each of these roles is associated with different tasks, types of cases, clients, and opportunities and constraints.

While some chafe at the notion of the SG as the tenth justice (Black and Owens 2012), the description springs from the ongoing dialogue shared by the OSG and the Court. Let’s acknowledge that we are using this not to approximate some reality but as a brief (hopefully clever) shorthand for discussing this part of the job of the OSG. As Paul Clement, solicitor general under George W. Bush, noted, “None of the nine real justices ever refer to the SG as the Tenth Justice.” The tenth justice moniker has a team aspect to it. Presidents carefully identify and nominate prospective Supreme Court justices and solicitors general using similar criteria. The SG works with the Court to build its agenda and to weave the precedents from the decisions (Perry 1991). The cases tend to involve the US government as one of the parties. They also share one or two common markers. Many of the cases involve economic issues, often reviewing regulations, and they tend to be cases based on statutory rather than constitutional review.

There are three other roles to explore. All three involve the OSG’s use of the amicus curiae brief. Most studies of the OSG focus on the amicus curiae briefs but lump them all into one large category, ignoring the significant differences between them. I am going to avoid conflating the amicus curiae cases. From my perspective, there are three different types of amicus briefs, and they carry different expectations for the Court and the OSG.

Earlier in the chapter, I noted that the act that created the OSG contributed to the sense that the solicitor general is, in effect, what the attorney general is in name. Most studies concentrate on the role that I have called the “attorney general for policy making.” The SG plays this role when reviewing the so-called agenda cases: the controversial social issues that motivate presidents to select Supreme Court justices (and increasingly solicitors general) very carefully. In recent times, these cases have been dominated by constitutional challenges, most notably in civil liberties and civil rights cases.

Each term, the SG enters a handful of these agenda cases in which the government is not a party through a discretionary amicus curiae brief. This permits the SG to advocate a position in a case the president cares about. The Dobbs (2022) landmark decision that overruled Roe v. Wade involved restrictions passed by the state of Mississippi. The US was not directly involved, but the Biden administration wanted to weigh in, supporting the Roe precedent and the clinic. The SG used an amicus curiae brief to convey its recommendations on this critical issue. The SG was unsuccessful in this endeavor.

By contrast, I distinguish those agenda issues from cases falling under the role of “attorney general for law enforcement.” Not every voluntary or discretionary amicus brief filed by the OSG is directed by the president or the attorney general. Several times a year, a state case will be percolating through the legal system. Though the US government is not a party, it might be affected by the decision and accompanying precedent. In these cases, the OSG files a brief to provide the Court with some information and help standardize state and federal prerogatives. The SG knows that a state environmental regulatory decision or a criminal procedure case may have implications for federal law enforcement in the future (Pacelle 2006).

There are dozens of examples, like Weaver v. Massachusetts (2017), a murder case involving alleged ineffective assistance of counsel for the defendant. Most criminal cases emerge from state courts. The OSG filed an amicus brief not because the president or the attorney general identified this as a critical decision. Rather, the SG asserted that because “this Court’s resolution of that question will affect federal criminal proceedings involving the same issue, the United States has a substantial interest in this case.”

Finally, we move to a different set of amicus curiae briefs: the invitations issued to the OSG by the Court. Over time, the office has earned a high degree of credibility with the justices. One manifestation of that credibility is that the Court will, on occasion, “call for the views of the solicitor general” (CVSG). The Latin phrase “amicus curiae” translates to “friend of the court.” And that is the original meaning of those briefs. An amicus curiae was a nonpartisan expert who the court engaged for assistance (Krislov 1963). Today, the vast majority of amicus curiae briefs are filed by partisans trying to help one of the parties to the case (Collins 2008). By contrast, the CVSG seeks a less strident, more “legal” inventory of issues (Pacelle 2006). It is most assuredly not the president asking the SG to file a brief; it is the Court seeking some context for fitting precedents together and building doctrine, in effect finding a niche for the current case. In these instances, the Court formally invites the SG to file an amicus curiae brief to express its views on the case before them. Johnson (2003) argues that these invitations are used when the Court wants to know if the federal government will support its decision (as in Brown v. Board of Education).

One such invitation was issued to the OSG in Endrew F. v. Douglas County School District (2015), a case that involved the Individuals with Disabilities Act (IDEA). The act offered states federal funds to assist in educating children with disabilities. In previous cases, the Court declined to issue a purposeful definition or enunciate a clear standard. Faced with moving in that direction, the Court invited the OSG to help formulate a standard. Typical of such invitations, the Court largely followed the SG’s suggestions. I refer to this role of the SG as the fifth clerk. The nine justices have four clerks who research the individual cert petitions and the cases and provide context. The SG is acting in the manner of a superclerk when he or she is invited to participate.

Research Questions and Design

Now that I have identified the roles the SG plays in our political and legal system, I turn to the analyses. I am interested in two questions suggesting “influence.” First, I want to examine the influence of the solicitor general (independent variable) on the decisions of the Court (dependent variable) and how that might vary by type of case controlling for the impact of the Court (attitudinal variable), elected branches (strategic variables), public opinion, and legal factors like the difficulty of the facts of the cases and existing precedent. Second, I am interested in which actors and/or factors influence the position that the OSG takes in a case. For this part of the analysis, I use the position of the solicitor general as a dependent variable. The unit of analysis is cases involving participation by the Office of the Solicitor General in the 1953–2020 terms (N = 4014 decisions).^[2] The dependent variables are both dichotomous, so I estimate the models using logistic regression.

There is a long-standing debate over the determinants of decision making on the Supreme Court. Some argue that because justices are appointed for life and have reached the apex of the judicial branch, they are free to act solely on their personal policy preferences (attitudinal model; Segal and Spaeth 2002). Other analysts note that typically, over a third of the decisions each term are unanimous; thus, the attitudinal model has limits. Justices (and the Court as a collectivity) may vote against their sincere policy beliefs to follow precedent (legal model; Pacelle 1991; Perry 1991; Knight and Epstein 1996; Songer and Lindquist 1996; Driscoll and Nelson 2023) or to avoid antagonizing the elected branches (strategic model; Epstein and Knight 1997; Bergara, Richman, and Spiller 2002; Gardner and Thrower 2023).

While the Supreme Court is theoretically independent of the winds of political change and the justices are unelected with lifetime tenure, studies show that public opinion has some impact on judicial decision making (Casillas, Enns, and Wohlfarth 2011; McGuire and Stimson 2004; Giles, Blackstone, and Vining 2008; Bartels and Johnston 2020). That impact may be direct (Mishler and Sheehan 1996) or indirect (Clark 2009; Marshall, Curry, and Pacelle 2014). As the attorney for the United States, a representative of the president, and an agent of Congress, the OSG may need to concern itself with public opinion as well.

To measure the impact of the other branches, as well as precedent, issue difficulty, and public opinion, I need measures for each of the variables. Fortunately, there are some well-established measures. As proxies for the ideology of the three branches, I use the common space measures for the Court and the president (Epstein, Martin, Segal, and Westerland 2007) and the NOMINATE scores for the House and Senate (Poole and Rosenthal 1997). I include a variable for public opinion, the Stimson Mood variable, which tries to capture the public’s general sense of appropriate public policy rather than the public opinion about a specific policy. Finally, I add variables for precedent and issue evolution to gain purchase on legal factors. Precedent and predictability have always had a strong normative imperative. But there is also an empirical component incorporated into models of decision making (Bailey and Maltzman 2008, 2011; Baum 1997; Knight and Epstein 1996; George and Epstein 1992; Gerhardt 2008; Hansford and Spriggs 2006; Pacelle, Marshall, and Curry 2007; Songer and Lindquist 1996). The variable for precedent uses the most important precedent cited in the instant cases, gathered from the syllabus of the individual decisions (see Benesh and Spaeth 2001; Pacelle, Curry, and Marshall 2011).^[3] The issue evolution variable measures the difficulty of the facts of the case before the Court (Pacelle 2009).^[4] The more difficult the issue, the harder it is for the Court to deliver a prorights and proliberties (seen as liberal) decision or a proregulation decision.

I also coded variables for the position of the solicitor general in individual cases. Pro–civil rights and liberties and proregulation decisions are characterized as liberal by the Supreme Court Database. For part of the analysis, I use this as an independent variable contributing to understanding influences on the Supreme Court’s decisions. For a different part of the analysis, I use the position of the SG as the dependent variable to determine whether the other factors that contribute to decision making are brought to bear to influence or direct the position advanced by the SG. To examine the different roles played by the SG, I divided the cases across two dimensions: policy area (rights and liberties vs. economic) and type of case (constitutional or statutory authority).

Let’s begin with the SG’s role as the tenth justice. When playing this role, the United States is a party to the cases (the appellant or the moving party), and to isolate the role, I concentrated on cases brought by the SG. The cases involve economic regulation and are contested on statutory grounds. I use these cases because the SG controls the agenda and decided to pursue this case. These cases are seldom examined by analysts of the Court or the OSG (Boddery 2019).

Which factors will influence the decisions? Is the SG influential when playing this role? Because there is little to provide a guide, the expectations are unclear. These cases fit the jurisprudential mode (Perry 1991). The petitions are granted primarily to remedy circuit conflicts or to fill gaps in the development of precedent. The cases are not landmarks lying in the wake. Presidents are not directing their attorneys general or solicitors general to intervene in these cases. A large proportion of these decisions will be unanimous, which suggests that the attitudinal variable will not affect the Court’s decision. Similarly, the president, House, and Senate are not expected to have a statistically significant impact on the Court’s decision. Rather, the “legal” variables, most notably precedent, are expected to be the most consequential. The position of the SG is also likely to have a larger influence in these cases. The SG will have been successful in getting the case accepted. The influence occurs regardless of which party appointed her.

For the other three roles, I focused on cases in which the solicitor general filed an amicus curiae brief. These cases typically begin in state courts. These are cases that get the most attention from students of the OSG. The existing literature is colored by a concentration on the amicus curiae cases. Analysts exaggerate the perceived connection between the president and the OSG (Segal 1990; Bailey, Kamoie, and Maltzman 2005; Black and Owens 2012; Meinhold and Shull 1998; Nicholson and Collins 2008). There is a tendency to forget that the OSG has nine clients, deals with every major issue, and needs to standardize the law. The OSG fulfills different roles through the use of different amicus briefs.

The prevailing perspective suggests that the Court (attitudinal variable) and the president (strategic variable) have the greatest impact on the position adopted by the solicitor general and the decision of the Court in the agenda cases. Precedent might have a statistically significant impact on the decisions, but it is less prominent. The difficulty of the facts of the case (issue evolution) should also influence the OSG and the decision.

For an initial look at the amicus cases, I use constitutional cases involving civil rights and individual liberties (except criminal procedure) as the agenda issues coming from state courts. The US joins these cases by filing amicus curiae briefs (attorney general as policy maker role). I am not arguing that all rights and liberties cases are more important or salient than all economic regulations cases, but they tend to be. Not all rights and liberties cases are part of the president’s agenda cases, but they are more likely to be more substantively significant.

The remaining cases (economic and statutory) are considered less salient on policy grounds, but the cases may have implications for federal agencies (attorney general for law enforcement). I separate these cases because the expectations are completely different. Presidents are not directing the OSG in these cases. It is likely that in these cases, the Court is more concerned with settling the law than the direction of the decisions. The SG is more likely to be influencing the Court rather than vice versa.

Finally, I isolate the amicus briefs that were responses to an invitation from the Supreme Court (fifth clerk role). As the fifth clerk, the OSG is invited to assist the Court in anchoring the particular case in a niche. The justices seek assistance, so the ideological position of the Court (attitudinal) is not going to be a factor. There should be no influence emanating from the elected branches. Because the SG is asked for an advisory opinion, I expect the OSG’s recommendation to be influential. It is likely the solicitor general is going to build that recommendation around existing precedent.

Results

Does the Solicitor General Influence the Court?

I ran a series of models with the decision of the Court or the position of the SG as the dependent variables. I want to concentrate on the four roles the SG plays: the statutory, economic regulation cases in which the government is a party (tenth justice); economic and criminal procedure cases when the OSG files an amicus brief for stabilizing the law and shopping for ideas for doctrinal development (AG for law enforcement); constitutional civil liberties and rights cases also using an amicus brief but to further policy designs (AG as policy maker); and the cases where the OSG is invited by the Court to file an amicus brief (fifth clerk).

It should come as no surprise that the OSG is successful, and as such, it should have a positive impact on the Supreme Court’s decision regardless of the type. But moving beyond the obvious, take a look at two of the models: the regulation cases when the government is a party (tenth justice in table l) and the invited amicus cases (fifth clerk in table 2). The coefficients (the actual numbers) are not particularly important (or revealing). Rather, you should concentrate on what is statistically significant (denoted by the asterisks), which means that one variable affects the others. A lack of a statistically significant relationship means that the independent variable does not affect the Court’s decision.

Tables 1 and 2 show the influence of the SG simply overwhelms every other factor except precedent and (sometimes) the difficulty of the facts (issue evolution) in these types of cases. Most of the Supreme Court decision-making literature concentrates on the attitudinal variable. But in these two sets of cases, there is no relationship between the attitudinal variable and the decision. The justices do not feel compelled to consider the positions of the other branches. Similarly, the direct influence of the president, House, and Senate (strategic variables) is essentially zero. The legal variables (precedent and issue evolution or difficulty) and the position of the SG have an outsized positive effect controlling for the other variables. This suggests that the office is serving the government’s interests, helping the agency, and assisting the Court in the construction of doctrine. If we do not take the label too literally and focus on the joint effort and dialogue, we can comfortably refer to the SG as the tenth justice in these cases.^[5]

The invited cases (table 2) show starker results; only precedent and the position of the SG influence Supreme Court decision making. Recall what is occurring in these cases: the Court is asking the SG to provide it with information to help the justices find a suitable home in an existing doctrinal niche. Having gone to the trouble of requesting the Court’s help, the justices appear to follow the advice.

Who Influences the Influencer?

Let’s change the focus to the other dependent variable: the position of the solicitor general. When the SG decides to bear the cost of filing a discretionary amicus brief, which clients, if any, are most influential? Let’s begin with no filter and simply lump together all cases in which the OSG filed an amicus brief. The results (shown in table 3) appear to contradict my expectations. It appears at first blush that the president and Court are indeed influencing the OSG in these three roles (policy making, law enforcement, and even fifth clerk). This appears consistent with previous research and suggests the OSG is an available presidential resource that does not appear to be finite. It suggests that the SG is targeting the median justice (attitudinal variable).

When we peel away another layer, however, an entirely different picture emerges. I separate the cases back into the three original categories. The amicus curiae briefs filed to pursue policy-related decisions indeed reflect the goals of the administration, and they align with the attitudinal variable (measured with respect to the median justice). The SG is playing the role of attorney general for policy. But the president’s influence is limited to very visible agenda cases. Presidents are advised to treat this as a finite resource and avoid the temptation to pursue too many cases at the risk of angering the Court.

There are two other types of amicus briefs, and they follow different paths and advance different responsibilities. One is law enforcement related. These amicus briefs are designed to provide the SG with a vehicle to explain to the Court how the US government might be affected by a particular decision. The others are the invited cases. And lo and behold, it turns out neither the president nor the Court has any meaningful impact on the position adopted by the OSG in its “AG as law enforcement” cases (table 4) or the “fifth clerk” invited cases (table 5).

The literature tends to treat all amicus briefs as equivalent. But I argue that it is better to see them as three sets of amicus briefs with very different goals. The OSG may file an amicus for policy goals (normally those of the administration) or for informational purposes to apprise the Court that the decision may have broader consequences. Finally, very few analysts have examined the invited cases at all (unless they are simply folded in with all the other amicus briefs, but see Johnson 2003). When we examine the position of the OSG in these cases alone, the direction of the precedent is the only statistically significant coefficient at the .05 level (table 5). The influence of the difficulty of the case narrowly misses statistical significance at the .05 level (it is significant at .09). The SG is asked to help position a case in the broader context and acts as a true “friend of the court.”

Regardless of what types of cases, whether economic or civil rights, constitutional or statutory, visible or under the radar, the impact of the OSG is strong and positive. This is consistent with the existing literature. But changing the perspective to look at the influences of these variables on the position of OSG, only precedent is statistically significant across the board. Nothing else appears to influence the SG in the law enforcement or invited cases except the desire to provide the Court with the best possible recommendations and fit for the decision.

The results suggest that the OSG is insulated to some degree from the political gales. Regardless of party, the SG tends to be consistent in maintaining its positions in a number of areas (particularly criminal procedure, taxation, regulation, and federalism cases). That is the only way that precedent can survive. Patrick Wohlfarth (2009) found that when the OSG is seen as too political too often or too closely tethered to the president, it risks incurring the enmity of the Court and losing other cases.

 The Bigger Picture

Solicitors general operate in a dynamic environment. They are inherently “legal” actors whose decisions, successes, and failures have profound implications for public policy and politics. Based on these analyses, we can answer the following questions: How political is the job of the solicitor general? Can the SG be above politics, or do the position and the various roles make that impossible? Can the OSG successfully navigate the constraints in its environment?

The office typically flew under the radar because of its professionalism. As recently as the 1960s, a Republican president (Richard Nixon) took the Oval Office from his Democratic predecessor (Lyndon Johnson) and did not change the solicitor general. The reputation of the OSG was pristine. But from that moment of bipartisanship representing the elevation of law over politics, there have been seismic forces that have opened the OSG to more partisanship.

Fingers have been pointed at all recent administrations for tampering with the independence of the OSG. The Nixon administration was the first to have an OSG who opposed a civil rights initiative. The Carter administration altered the profile of the SG by choosing a less well-known entity. The Reagan administration was criticized for creating the principal deputy position (sometimes called the political deputy) and curbing the independence of the OSG (Caplan 1987; Fried 1991). The Reagan, Bush, and Clinton administrations were criticized for politicizing the selection of assistants in the office. Republicans in Congress used hearings and oversight to monitor the first Clinton SG. The Clinton administration could not confirm its second SG (he served as acting SG; Pacelle 2003). The Obama and Trump solicitors general were criticized as tampering with the long-term comity between the Court and OSG, and each had a Court term where the success rate failed to crack 50%.

Presidents and justices look for opportunities to push their agendas. If presidents have done their homework, they will appoint attorneys general and solicitors general who share their policy goals and might be amenable to pushing that agenda. Are presidents extending their reach and making broader use of the SG today? The evidence suggests so, but marginally. Recent solicitors general have had lower “batting averages” over a couple of terms and that might suggest some Court reaction to overreach. The result could be some fraying of the ropes that bind the OSG and the Supreme Court.

For the last half century, presidents have tried to bend the OSG to their will. Presidents are on short-term clocks, with four to eight years to write their pages in history. They may struggle with Congress. The Supreme Court may look like an attractive oasis, and the SG may be a resource to use to that end. They may not fully respect the need to maintain the bond between the OSG and the Court. Solicitors general invariably want to protect the office and bequeath to their successor a strong relationship of trust with the Supreme Court.

The solicitor general may work for the president, but the Office of the Solicitor General works with the justices for the government, Congress, and federal agencies as well as the president. The Supreme Court makes public policy through its decisions, often with the assistance of the OSG. But in a sizable portion of the cases, the Court, with the active assistance of the OSG, puts aside policy making in favor of consistency and stability in the law. This is critical for the legitimacy of the Court and the reputation and professionalization of the OSG.

Concerns for the future direction and respect for the OSG remain viable. There are three that bear watching. First, recent solicitors general have been charged with being too political, entering too many cases as amicus curiae, and not entering enough cases as a party (Cordray and Cordray 2010). This incurs some costs. When the government is a party, the OSG has more control over the facts of the case than when the SG is amicus. That translates to a better chance to get favorable precedents. By contrast, filing more amicus briefs interjects the solicitor general into more cases. The SG could be considered to be “meddling” too often.

Second, some claim that equal justice under the law is compromised. Some see the OSG as advantaged by the Court: the “home team,” as it were. No other litigants have success rates in getting their cases accepted or winning on the merits that remotely resemble the OSG. The OSG has no problem filing amicus briefs and is the only litigant that has a virtually automatic opportunity to reserve time for oral argument.^[6] When the SG files an amicus brief, it can request time to provide an oral argument even though the US is not a party to the case. This has led some analysts to believe that the SG has an additional advantage and becomes the “loudest voice” and the “third advocate” (Covert and Gates 2021).

Third, there has been a long-standing criticism of the scope of authority belonging to the OSG. As noted, agencies need permission from the SG to appeal adverse decisions to the Supreme Court. The agency also needs to defer to the OSG who sets up the litigation strategy. The potential problem comes in the relationship between the office and independent regulatory commissions like the Food and Drug Administration, Federal Aviation Administration, and the Securities and Exchange Commission, among others (Devins 1994; Lemos 2009). These bodies were created as independent agencies kept at arm’s length to protect their viability. If the OSG can determine when these agencies can appeal and construct the theory and bases for the argument, they could well undermine their independence. Theoretically, this could be a backdoor means of expanding presidential or congressional influence over the agency. It might suggest some elements of presidential or Department of Justice control that elevate politics over law.

Conclusion

The siren song of the solicitor general and indeed the Supreme Court itself is enticing. The Court has long been a consequential policy maker, often confronting issues that the elected branches might prefer to ignore. Judicial activism has been the dominant paradigm for most of the Court’s recent history. The undemocratic nature of the Supreme Court is juxtaposed against the symbols of the law, the robes, and the aura attached to the Constitution. Given the small size of the Court, filling any vacancy can tip the balance for a generation.

The Court became a beacon for groups that found barriers erected by the states, Congress, or the president. Litigation became an important tool in affecting legal and policy change. By any measure, the most successful litigation arm belongs to the US government. The solicitor general could be seen as the key to the Court’s docket and a valuable ally in pursuing policy goals.

Indeed, the SG is in the middle of policy making, but the scope of its role is measured. Consistency and predictability in the law are valued. The office has built up a reservoir of goodwill and respect that it jealously guards. It faces a complicated task, juggling a number of roles and clients. Part of the office’s success is a function of its professionalization, a refusal to overreach, and its reputation. Some analysts, however, miss the rich panoply of responsibilities and tasks and focus on one or two visible aspects. While those individual decisions may bask in the brightest light, numerically, they represent a small portion of the docket.

The SG helps the Court by screening its own cases carefully. The SG helps structure decisions and build precedent in issue areas that are far from the public purview. Arguably, both tasks are less “policy” oriented and more directed to the legal aspects of the Court’s responsibilities and the SG’s work. The tendency to overlook these cases and their results paints an inaccurate or exaggerated view of the OSG.

The Supreme Court needs to establish a balance between dynamic policy making and imposing stability on the law. We seem to dismiss the latter while exaggerating the former. The attitudinal model predicts inexorable change in the direction of newly appointed justices. The legal model appears to elevate stagnation over change (George and Epstein 1992). And yet despite the changes in the composition of the Court (and the OSG), few precedents are overturned.

Analysts focus on the front-page cases that invariably attract presidential attention. In doing so, they ignore cases where the government is a party (the lion’s share of the OSG’s work). Those cases create precedents that make them important building blocks of policy and doctrine. And if they are found in the newspaper below the fold on page 7, all the better. The Court and SG are well-served by having some noncontroversial (often unanimous) decisions to reinforce their precious legitimacy and accrue goodwill that can be spent on the more visible cases.

It matters if the solicitor general can exercise control of litigation strategies or if the president and attorney general are dictating. If the president or attorney general is coordinating the litigation strategies, they may squander an important resource: the aura of the Office of the Solicitor General. Rather, the appropriate tactic appears to choose your spots carefully reserving intervention for the most important cases. Presidents and their attorneys general would be well advised to show deference to the OSG on other matters.