By Linh Nguyen
An article published in the University of Pennsylvania Law Review proposes the creation of a new office opposite of that of the solicitor general.
Supreme Court Justices argue that many criminal defendants arguing before the justices do not enter the court putting their clients’ best interests first. Rather, these attorneys are more enticed by the opportunity to argue in the Supreme Court, taking the once-in-a-career opportunity. Justice Sonia Sotomayor argues that this is a form of malpractice.
The authors of the article argued that the problem is structural.
“Government lawyers can act strategically to play for bigger long-term victories,” they wrote, “while defense lawyers must zealously advocate for the interests of their client — even when they conflict with the interests of criminal defendants as a whole. The prosecution’s advantages likely distort the law on the margins.”
The creation of a new office that would serve opposite of that of the solicitor general would remove that imbalance. The defender general’s office would represent individual criminal defendants or file supporting beliefs on their behalf. However, more importantly, the article argues that the defender general’s office would represent the interests of criminal defendants, even when they conflict with the interests of particular defendants.
A previous study from a 2016 article in the Minnesota Law Review proposed that justices appoint expert lawyers to argue as friends of the court, or amicus curiae, alongside the defendants’ 
attorneys.
Democratic Senator Cory Booker of New Jersey proposed creating a Defender Office for Supreme Court Advocacy to represent criminal defendants and file supporting briefs.
In fact, studies show that Supreme Court specialists perform better in the Supreme Court than criminal defense lawyers. They win cases at a higher rate than those who are not as experienced. This is because they understand the doctrines that made the law, the different justices’ behavior, and the quick progression of the argument.
This 2016 study found that as many as two-thirds of the arguments on behalf of criminal defendants came from lawyers appearing before the Supreme Court for the first time.
The difference is that lawyers going to the Supreme Court for the first time enter with nerves and a lack of understanding of how the Supreme Court functions in contrast to the smaller courtrooms that they are accustomed to.
“A lot of these cases, they’re pretty hard to win anyway,” said Justice Elena Kagen. “And what we see is that people are being represented by whoever the trial counsel was for a particular defendant. And appellate advocacy is hard, and it takes a lot of skill and a lot of experience.”
The Justices argued that trial lawyers should cede these opportunities to these specialists. However, realistically, many novice lawyers would rather not give up this opportunity.
As of right now, this proposed defender general’s office is a mere thought experience and not in the process of actually developing. However, it brings to light some imbalances in the criminal justice system.
