The Tenth Justice: How the Solicitor General Quietly Shapes the Supreme Court

When the nine justices of the United States Supreme Court take the bench, the spotlight is entirely on them. But sitting just below the bench, often wearing a traditional morning coat with striped trousers, is a lawyer who wields so much influence that Washington insiders refer to them by an unofficial title: the "Tenth Justice."[1]

This is the Solicitor General of the United States. Ranking fourth in the Department of Justice hierarchy, the Solicitor General serves as the federal government's chief appellate advocate. While the Attorney General oversees the entire justice system, the Solicitor General has a singular, laser-focused mandate: representing the United States before the highest court in the land.[2]

The power of the office stems from a unique dual role that bridges the executive and judicial branches. The Solicitor General is appointed by the President and confirmed by the Senate, making them a key player in the administration. Yet, they also maintain a permanent suite of offices inside the Supreme Court building itself—a physical symbol of their deep institutional ties to the judiciary.[2]

In practice, the Solicitor General acts as the ultimate gatekeeper for federal litigation. When the United States loses a case in a lower appellate court, the government cannot automatically appeal to the Supreme Court. The Solicitor General alone holds the authority to decide whether the government will file a petition for a writ of certiorari.[1][2]

Because the office rigorously filters out weak cases and only brings forward those with significant legal merit, the Supreme Court inherently trusts their judgment. While the Court accepts fewer than five percent of standard petitions filed by private attorneys, it grants review to a staggering 75 to 80 percent of the cases brought by the Solicitor General.[1]

But the Solicitor General's influence extends far beyond cases where the federal government is a direct party. The Supreme Court frequently relies on the office for guidance in complex disputes between private corporations, states, or foreign entities where federal interests might be indirectly affected.

This reliance is formalized through a mechanism known as a "Call for the Views of the Solicitor General," or CVSG. When the justices are torn on whether to hear a difficult case, they will pause the proceedings and formally invite the Solicitor General to file a brief offering the government's perspective on the matter.

Empirical research demonstrates just how heavily the Court leans on this advice. Studies analyzing decades of Supreme Court dockets show that when the Solicitor General recommends granting or denying certiorari in a CVSG, the justices follow that recommendation roughly 80 percent of the time.

Once a case reaches the merits stage—where the actual legal questions are debated—the Solicitor General enjoys special procedural privileges. They are the only litigant who does not need the permission of the involved parties or the leave of the Court to file an amicus curiae (friend of the court) brief.

During oral arguments, the Court frequently grants the Solicitor General a portion of the argument time, even when the federal government is merely acting as an amicus. This allows the government to directly answer the justices' hypotheticals and shape the narrative of the case in real-time.

The statistical impact of this advocacy is profound. A comprehensive linguistic analysis of Supreme Court opinions revealed that majority opinions adopt 135 percent more language from amicus briefs filed by the Solicitor General compared to briefs filed by other elite organizations or state governments.

This outsized influence creates a persistent, structural tension inherent to the job. The Solicitor General is constantly torn between two masters: the President who appointed them to advance a specific agenda, and the Supreme Court that relies on their absolute legal candor.[3]

Executive advocates argue that the Solicitor General is ultimately an agent of the President. From this perspective, the winning administration is entitled to use the Department of Justice to aggressively push its policy preferences through the courts, and the Solicitor General should act as a loyal foot soldier in that effort.[3]

Conversely, institutionalists argue that the Solicitor General owes their primary duty to the rule of law and the long-term interests of the United States. This means they must sometimes refuse to defend a federal law they deem clearly unconstitutional, or decline to make a legally flimsy argument just to satisfy the immediate political demands of the White House.[3]

Maintaining this delicate balance is the true art of the job, and it is what preserves the office's credibility. If a Solicitor General is perceived by the justices as too partisan, the Court may stop trusting their briefs. If they are too independent, they risk alienating the executive branch and facing internal administration backlash.[3]

Ultimately, the "Tenth Justice" remains one of the most vital, yet least understood, gears in the American legal machine. By quietly filtering cases, advising the justices, and shaping legal arguments, the Solicitor General directs the trajectory of federal law long before the final opinions are ever published.[3]