Welcome

State Solicitors General Take On Abortion, Guns at High Court

Nov. 22, 2021, 9:45 AM

Mississippi Solicitor General Scott Stewart will make his U.S. Supreme Court debut Dec. 1 to defend that state’s 15-week abortion ban, the latest in a string of attorneys for state SG offices to take the lectern this term.

Solicitors general from five states appeared at seven of the 19 arguments so far this term including in politically charged cases involving abortion, gun rights, and capital sentencing. Stewart and Arizona Solicitor General Brunn Roysden will argue in the upcoming sitting.

State solicitors general offices are a relatively new phenomenon, designed to increase the quality of appellate advocacy at the Supreme Court as states “are more frequent litigants there than most other entities,” said former Michigan Solicitor General Aaron Lindstrom, who argued two cases as the state’s SG.

And like other solicitors general across the country, both Lindstrom and Stewart have ties to Big Law, and, in particular, the conservative powerhouse Gibson Dunn.

“There is definitely a trend here” of connections between Big Law and state SGs offices, said longtime legal commentator David Lat, and Gibson is “a big leader.”

Quality, Consistency

Longtime Missouri Solicitor General James Layton said the proliferation of these offices is tied to the realization, in the 1980s and early 1990s, that “the states weren’t very well represented in the Supreme Court.” That was particularly so in civil cases, Layton said, noting that many state attorneys had expansive experience in criminal matters.

The goal in establishing a dedicated appellate practice at the state level was to not only increase the quality of representation, Layton said, but to bring consistency to the state’s position across cases.

And that’s paid off, said University of Wisconsin-Madison political science professor Ryan Owens.

“The data show that state SGs are more likely to win their cases than otherwise similar attorneys who argue for states,” Owens said. He pointed to a 2014 paper in which he suggested that “if states prioritize victory before the Court, they should consider creating state solicitor general offices.”

Varied Models

Many states have heeded that advice.

As of November 2021, 42 States, plus the District of Columbia, Puerto Rico, and the Virgin Islands, have a solicitor general or state solicitor who oversees the state’s civil appellate practice in some form or another, according to the National Association of Attorneys General.

Moreover, three more states have what NAAG calls “de facto” solicitors general, who don’t have the title but perform that function.

Just five states—Delaware, Idaho, Maine, Wisconsin, and Wyoming—don’t have an equivalent position. As a result, Chief Deputy Attorney General Christopher C. Taub will represent Maine Dec. 8 in a case about state funding for religious schools.

But solicitors general offices vary quite a bit across the country, said Layton.

On one end of the spectrum are offices—like New York’s—which handle all civil appeals for the state, Layton said. On the other end are offices that focus almost exclusively on the state’s litigation before the U.S. Supreme Court, pointing to the model employed by now-Sixth Circuit Judge Jeffrey Sutton when he led the Ohio Solicitor General’s Office.

Most, Layton said, fall somewhere in the middle, following the model of the Office of the U.S. Solicitor General.

Big Law Connection

Another important way that these offices differ is in who holds the position of solicitor general, Layton said.

Some are public servants who spend the bulk of their career with the state. Others have relied on shorter term SGs, he said.

States in the latter group have tended to look to large law firms for candidates, Layton said.

Lindstrom says that makes sense, given that law firm attorneys are more likely to have Supreme Court experience than other lawyers.

But Layton says good lawyering isn’t the only thing these states are looking for in an SG. As states tackle more politically charged cases, including through the filing of friend-of-the-court briefs, state leaders are looking for an advocate who can help them advance their social agenda as well.

He said it’s no surprise that a firm like Gibson Dunn, with close ties to the Republican Party, has seen a number of alums go on to state SG offices.

Gibson Dunn partner Ted Olson, who served as the U.S. solicitor general, also represented George W. Bush in the litigation over the 2000 presidential election, Bush v. Gore. And Gibson Dunn partner Eugene Scalia, the son of late conservative legal titan Justice Antonin Scalia, was labor secretary under President Donald Trump.

Though it wasn’t something he notices while still at the firm, Lindstrom said while an associate at Gibson Dunn, “the hallway I was on, it ended up that three or four of us went on to become state solicitors general.” That includes Tyler Green, who became Utah’s solicitor general, and the Ninth Circuit’s Lawrence VanDyke who did so for both Montana and Nevada.

Lindstrom noted that Misha Tseytlin, who became the Wisconsin SG, was also at Gibson Dunn at the same time, but couldn’t remember “if he was on the same hallway or not.”

At least five current state solicitors hail from Gibson Dunn, including Stewart, Arkansas’s Nicholas Bronni, Florida’s Henry Whitaker, Oklahoma’s Mithun Mansinghani, and West Virginia’s Lindsay See. Like Lindstrom, several former state SGs—like former Texas SG Kyle Hawkins and Wisconsin’s Tseytlin—have also come from Gibson Dunn.

Gibson Dunn isn’t alone, with several state SGs coming from Kirkland & Ellis and Jones Day, too.

Red states aren’t the only ones looking to top law firms to beef up their appellate practices, Lat noted.

New Jersey Solicitor General Jeremy Feigenbaum is a Kirkland alumnus and former clerk to Justice Elena Kagan.

“So it’s blue states, too,” Lat said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

To read more articles log in.

Learn more about a Bloomberg Law subscription.