The Attorney General is a US Department of Justice official who argues cases before the Supreme Court on behalf of the government and decides which cases are heard. The office was created in 1870 and primarily assists the Attorney General in cases with a direct or indirect impact on the government. The Attorney General also decides which certiorari petitions are submitted to the Court and may be asked for help in non-government cases. The relationship between the Attorney General and the Supreme Court is sometimes conditional on the administration’s policies, leading to debate about the office’s independence.
The attorney general is an official of the United States Department of Justice who argues cases before the United States Supreme Court on behalf of the government. Appointed by the president, he is also responsible for deciding which government cases are heard before the Supreme Court. Since the position was established in the 1870s, the Attorney General has worked closely with the Supreme Court and is sometimes known as the “Tenth Justice.” In recent years, those who hold office have been more likely to serve as an advocate in the Supreme Court for the policies of the incumbent administration.
Congress created the Attorney General’s Office, or OSG, in 1870 at the same time as the creation of the Justice Department. The office’s primary responsibility, as mandated by Congress, was to assist the Attorney General whenever the government had a direct interest in a dispute or if a legal matter was decided that would have a significant indirect impact on the government. While they argued occasional cases in other circumstances, those who held office after 1950 generally focused on government cases before the Supreme Court.
While the Attorney General gets the most notoriety for the cases he argues in the Supreme Court, an equally important part of the job is deciding which cases get that far. The person who is appointed to the position must decide which of the many certiorari petitions filed by various government agencies is worthy enough to be submitted to the Court. This discretion prevents the court from examining unnecessary cases and strengthens the relationship between the OSG and the court.
Another reflection of that close relationship is the fact that the Supreme Court will sometimes ask the Attorney General for help in non-government cases in the form of briefs from friends of the court. The Attorney General will also show deference to the court with the practice of “confessing mistakes.” The confessional error occurs when the government wins a case in a lower court that the OSG determines may have been a bad decision and then requests that the Supreme Court review the case and possibly reverse the decision.
This special relationship between the Attorney General and the Supreme Court is occasionally conditional on the accountability the office has to the administration that appointed it to the post. The modern political climate in the United States often requires the OSG to be at the forefront of advancing administration policies before the court. There is therefore a debate as to whether the OSG is an independent position that should help the Supreme Court serve the interests of the law first or whether it should be a political weapon wielded by the president.
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