In the often inscrutable arena of the United States Supreme Court, the position of the Solicitor General can wield significant influence, sometimes akin to that of an unofficial “tenth justice.” The role primarily involves making pivotal litigation strategy decisions on behalf of the federal government. Such strategies have the potential to shape legal outcomes even when the broader remit of the Court leans consistently in a particular ideological direction.
The historic role of the Solicitor General, established in 1870, is to represent the federal government in Supreme Court cases, defend the executive branch, and, typically, acts of Congress. According to the Department of Justice, the Solicitor General’s office is involved in about 90% of the Court’s work. This involvement underscores the gravity of its strategic decisions, which was evident during the latest developments involving the Trump administration.
Recent cases demonstrate how strategic choices by Acting Solicitor General Sarah Harris and Trump Administration Solicitor General D. John Sauer, played roles in the Supreme Court’s rulings on serious matters. One notable instance involved Trump’s executive order on birthright citizenship. Various lawsuits questioned its constitutionality under the 14th Amendment. Harris requested the Supreme Court to restrict district courts from issuing broad nationwide injunctions, making a powerful case for limiting court rulings to the parties involved. The Supreme Court’s decision to renounce broad injunctions marked a victory for that specific strategy, although the Court later invalidated Trump’s order on constitutional grounds. The sequencing of these decisions allowed a partial victory for the administration, highlighting the significance of strategic separation of legal issues.
Further showcasing strategic maneuvering, two cases arose concerning President Trump’s endeavor to assert greater control over dismissals within federal agencies, traditionally considered independent. In the case of Trump v. Slaughter, involving the Federal Trade Commission, Sauer’s constitutional argument of the “for cause” limitation was upheld, overturning longstanding precedent regarding presidential authority over agency dismissals. The reserved approach in Trump v. Cook concerning the Federal Reserve Board resulted in a different outcome, whereby the Court protected the nation’s tradition of central banking from direct political influence.
The nuanced differences in these arguments underscore the crucial role litigation strategy plays in shaping legal debates and decisions. The outcomes in both the birthright citizenship and agency independence cases reflect the delicate balancing act that the Solicitor General must perform—navigating between advocacy for executive policies, while presenting arguments that resonate with the broader judicial philosophy of the Supreme Court. As estimates suggest, the Solicitor General is involved in a significant portion of the court’s workload, further amplifying the importance of these strategic choices. The consistent involvement of the Solicitor General in Supreme Court proceedings continues to make it an office worth watching as key legal and political matters unfold.