The Solicitor General and the Shadow Docket
![handle is hein.journals/hlr133 and id is 130 raw text is: ESSAY
THE SOLICITOR GENERAL AND THE SHADOW DOCKET
Stephen I. Vladeck*
[T]he Solicitor General's special relationship to the Court is not one
of privilege, but of duty - to respect and honor the principle of stare
decisis, to exercise restraint in invoking the Court's jurisdiction, and to
be absolutely scrupulous in every representation made.
- Seth P. Waxman, Solicitor General of the U.S. (1997-2001)1
For almost as long as there has been a Solicitor General of the United
States (150 years next June2), there has been debate over the unique
functions and obligations of the office.3 It's not just that the Solicitor
General is one of the only federal officers who, by statute, must be
learned in the law.4 Besides the Vice President, the Solicitor General
is the only federal officer with formal offices in multiple branches of the
federal government - in both the main building of the Department of
Justice and the Supreme Court.5 And the Solicitor General does not just
have a physical presence at the Supreme Court; the Court's rules and
traditions both formally and informally privilege the Solicitor General
as the de facto head of the Court's bar - and show special solicitude to
the Solicitor General across a constellation of considerations.6
With these special privileges come special responsibilities. As Simon
Sobeloff (Solicitor General from 1954 to 1956) put it, [t]he Solicitor
* A. Dalton Cross Professor in Law, University of Texas School of Law. I am indebted to the
editors of the Harvard Law Review for the invitation to write this Essay and their helpful discus-
sions and suggestions along the way; to Will Baude, Joan Biskupic, Adam Feldman, Josh Geltzer,
Linda Greenhouse, Tara Leigh Grove, Lindsay Harrison, Rick Hasen, Marty Lederman, Sandy
Levinson, Leah Litman, Joshua Matz, H.W. Perry, Mila Sohoni, David Vladeck, Karen Vladeck,
and participants in a faculty colloquium at the University of Texas School of Law for incisive and
insightful feedback; and to Matt Steinke of the Tarlton Law Library and Alex Holland and Rachael
Jensen, University of Texas School of Law Class of 2020, for exceptional research assistance.
1 Seth P. Waxman, Solicitor Gen. of the U.S., Presenting the Case of the United States as It
Should Be: The Solicitor General in Historical Context, Address to the Supreme Court Historical
Society (June 1, 1998), https://www.justice.gov/osg/about-office [https://perma.cc/QV72-3SZD].
2 See An Act to Establish the Department of Justice, ch. 150, § 2, 16 Stat. 162, 162 (1870) (cod-
ified at 28 U.S.C. § 505 (2012)) (creating the position).
3 See REBECCA MAE SALOKAR, THE SOLICITOR GENERAL: THE POLITICS OF LAW 8-32
(1992) (exploring the structural tensions that have defined the position throughout its history).
4 28 U.S.C. § 505.
s Waxman, supra note i.
6 See LINCOLN CAPLAN, THE TENTH JUSTICE: THE SOLICITOR GENERAL AND THE
RULE OF LAW 19-50 (1987).
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The Solicitor General and the Shadow Docket
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