133 Harv. L. Rev. 123 (2019-2020)
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       )

    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.  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. o50,  2, I6 Stat. 162, 162 (I870) (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.
   5 Waxman, supra note i.
   6 See LINCOLN CAPLAN, THE TENTH  JUSTICE: THE SOLICITOR GENERAL AND THE
RULE OF LAW Ig-5o (1987).


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