In the wake of Justice Anthony Kennedy’s retirement, the talk of the town hinges on who will get the presidential nod to replace the justice from Sacramento, and whether Sen. Mitch McConnell can once again muster the necessary votes to secure a razor-thin confirmation victory. Meanwhile, a quieter, end-of term high court-watching rite is well underway, as pundits and scholars engage in numbers crunching to shed light on who’s up and who’s down on the court. Whether Kennedy’s influence waxed or waned during his final term is informative, but what avid court observers also want to answer is the perennial question: How did the solicitor general perform?
From its birth in 1870, the Office of the Solicitor General has been a pivotal presence in the U.S. Supreme Court’s daily labors. From William Howard Taft to Robert Jackson, Archibald Cox and Thurgood Marshall, and more recently Elena Kagan, the office has a virtual elbow-length relationship with the nine justices. No one else gets called by the nation’s highest court, regularly, for a weighty task: Please tell us, the Supreme Court inquires, whether we should hear the case. The SG is, in effect, a super high-level consultant, operating independently from and outside the justices’ confidential deliberations, and yet a familiar friend provided with a convenient physical office inside the court. Famously dubbed “the Tenth Justice,” the SG’s success tends ultimately to be measured, as in baseball, by the won-loss statistics that emerge from each term.
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