Analysis: How the ‘10th justice’ can help Trump’s agenda at the Supreme Court

President Donald Trump named three justices in his first term, establishing a conservative supermajority on the Supreme Court. And now, even without an imminent vacancy, Trump is positioned to push the court farther to the right.

He has begun turning the top appellate litigator at the Department of Justice to his advantage. That prestigious office of the US solicitor general influences – more than other petitioners – which appeals the Supreme Court takes up and which side wins.

Trump’s lawyers on Friday reversed a Biden administration transgender-rights position challenging state bans on hormones, puberty blockers and other gender-affirming care for trans minors.

DOJ lawyers have also reversed a Biden administration position on voting rights and backtracked on its environmental cases. They have also begun strategizing on Trump’s controversial executive orders – covering immigration, federal workers and a funding freeze – destined for the Supreme Court.

Swathed in such institutional trappings as morning suits and quill pens, the office of the solicitor general enjoys considerable deference from the nine justices. Colloquially known as “the tenth justice,” the solicitor general has a designated office at the court. Many in its elite squad – not just at the top but among the 20 staff attorneys – once served as law clerks to justices.

Their arguments can provide the legal scaffolding for the Supreme Court’s decision, and in the closest of cases the solicitor general has been known to persuade a key justice.

One example from last year occurred when Biden administration Solicitor General Elizabeth Prelogar swayed Justice Amy Coney Barrett in a case about emergency room abortions in Idaho. The result was an unexpected moderate decision on reproductive rights from a court that just two years earlier had reversed Roe v. Wade and nearly a half century of constitutional abortion rights.

The new Trump team is poised to do just the opposite: Power the rightward trajectory of the high court.

The US solicitor general oversees a specialized appellate force of 20 lawyers headquartered at the Justice Department, down the hall from the attorney general. But, as reflected in the solicitor general’s dedicated oak-paneled room at the Supreme Court, its ties to the high court are deep and constantly reinforcing. Four of the current nine justices once served in the office.

“They are working in an office with lawyers who have argued hundreds of cases before the court and briefed out thousands of cases,” said Gregory Garre, who was US solicitor general at the end of the George W. Bush administration. “And they come with the added heft of representing the United States. Even things as little as the attire they wear singles them out before the court.”

These Justice Department lawyers are destined to play a consequential role, particularly as they tee up cases that could play to the justices’ established conservatism. Six of the nine justices are Republican-appointed conservatives (three by Trump himself), and three justices are Democratic-appointed liberals. Trump could see another opening over the next four years, if either Justice Clarence Thomas, age 76, or Samuel Alito, 74, decide to retire and allow Trump to name a like-minded successor.

How the Supreme Court reacts to the sweeping Trump agenda will soon be seen in lawsuits over his early policies. There may be some pushback from the justices, as there was during his first term. The Supreme Court narrowly upheld his travel ban on Muslim-dominated countries in 2018, but then in 2019, after a switched vote by Chief Justice John Roberts behind the scenes, blocked Trump’s plan to add a citizenship question to the decennial census.

The current court is different, of course, because Roberts is not in the same decisive position. Five right-wing justices, including Barrett, can now form a majority without him.

Trump’s personal lawyer becomes the government’s lawyer

For the US solicitor general, the fourth highest-ranking official at the Justice Department, Trump has nominated D. John Sauer, who successfully represented Trump in his appeal for immunity from criminal prosecution at the high court last year.

The office of the solicitor general has existed since 1870. Sauer, like the men who came before him, would wear a traditional gray morning coat and gray striped pants when standing at the lectern in the well of the courtroom. The only two women to ever hold the top post, Prelogar and Justice Elena Kagan, wore black suits.

Sauer was a law clerk to the late Justice Antonin Scalia and later became state solicitor general in Missouri. Over the past decade, Sauer has been a passionate crusader in the culture wars, against abortion and LGBTQ rights.

In the recent TikTok case, Sauer submitted a brief for Trump, then just weeks from entering the White House, that was notable for its ambitious, even audacious, claims of Trump’s presidential and personal power, including that he alone could resolve the TikTok controversy. (The Supreme Court let the ban take effect on January 19, but Trump upon taking office the next day instituted a 75-day pause.)

While Sauer awaits Senate confirmation hearings, the acting solicitor general is Sarah Harris, a former law clerk of Justice Thomas who most recently practiced law at the Washington, DC-based global firm of Williams and Connolly. Harris has already told the court that the administration has changed the government’s stance in pending litigation over voting rights and is reconsidering its position in environment and student-loan repayment disputes.

Harris had previously been involved in the dispute over transgender medical care, so it fell to Deputy Solicitor General Curtis Gannon to send the Trump administration letter Friday declaring that the federal government was abandoning its prior opposition to bans on minors’ gender-affirming care.

When the dispute, United States v. Skrmetti, was heard at the high court last December, it appeared a majority already existed to reject the Biden stance that the state bans denied trans youths equal protection of the law based on sex. Perhaps because the Trump team believes the dispute will indeed go its way, it urged the justices to keep the case and resolve it without any further briefing. The specific law before the justices, from Tennessee, prohibits doctors from prescribing hormone therapy and puberty blockers for trans youths under age 18. A US appeals court allowed the ban to take effect while legal challenges were underway.

Changes in positions are becoming more common

Traditionally, the Justice Department was loath to abruptly switch the federal government’s position at the Supreme Court, as the solicitor general is supposed to carry the mantle of long-term institutional interests and protect the credibility of the office.

Its lawyers analyze the facts and law of a case, with the overriding interest being that of the United States government. As such, the analysis would not suddenly shift every four years or when a new administration takes over.

“(A)t least for me, the office was very clear that you were supposed to think long and hard, and then you were supposed to think long and hard again, before you changed anything,” Justice Kagan recalled in 2018 of her tenure as US solicitor general during the Barack Obama administration, before he nominated her to the bench.

But as Washington has become more polarized and partisanship entrenched, some of the veneer of neutrality and independence of the solicitor general has evaporated.

The first Trump administration immediately switched positions in four major Supreme Court cases its first year, prompting liberal Justice Sonia Sotomayor to remark to then-Solicitor General Noel Francisco, “Mr. General, by the way, how many times this term already have you flipped positions from prior administrations?”

But the Biden administration, too, notified the high court of changes in a handful of cases during the early weeks of its tenure.

Four days after Trump took office for the second time, the Supreme Court began receiving a series of Justice Department letters that said, “Following the change in Administration …” or “After the change in Administration…” the department was reconsidering various positions and policy.

But the justices still have high regard for the office

The rise in partisan switches has not decreased the Supreme Court’s collective regard for the office of solicitor general, according to Adam Feldman, who synthesizes data on Supreme Court patterns for his Empirical SCOTUS site.

Feldman told CNN that during the last 20 years, conservative justices, including Chief Justice Roberts, have shown stronger support for the government’s arguments across its vast caseload than the liberal justices.

Lawyers who argue before the court receive ceremonial quill pens, and members of the solicitor general’s office accumulate more of them. The office appears in roughly half the cases heard in oral arguments, either because the federal government is a direct party or because the Justice Department has staked out a position as an amicus curiae, or “friend of the court,” in favor of one side or another.

Indicative of the power of this Justice Department division, attorneys who represent other litigants routinely meet with its lawyers to urge their support with an amicus brief. Outside litigants willingly give up some of their allotted time at the courtroom lectern to a Justice Department lawyer when the government joins their case.