State Solicitors General to Have Big Week at US Supreme Court

State solicitors general will be a frequent presence at the US Supreme Court lectern this week.

Nebraska’s Solicitor General Jim Campbell will appear Tuesday on behalf of six states challenging President Joe Biden’s plan to relieve student loan debt for millions of Americans.

The next day, lawyers from New York and New Jersey will square off over the fate of a 70-year-old interstate agreement designed to combat organized crime at the port between the two states.

Drew Ensign, who served as Arizona’s deputy solicitor general, was supposed to argue a third case this week involving Biden’s plan to scrap pandemic-era border restrictions, but that one got removed from the argument calendar earlier this month.

“State attorney general offices recognize the importance of appellate practice and have made a conscious effort to bring in high quality solicitors general, as well as to create the position in the first place,” said Dan Schweitzer, director and chief counsel of the National Association of Attorneys General’s Center for Supreme Court Advocacy.

Collectively, states are the second-most frequent advocate at the Supreme Court behind the federal government, Schweitzer said.

Of the 24 state cases before the Supreme Court last term, he said 22 were argued by either a state solicitor general or their deputy. So far this term, state solicitors general have appeared in 13 cases before the court, according to a Bloomberg Law analysis.

First Timers

New Jersey Solicitor General Jeremy Feigenbaum, a former Kirkland & Ellis associate who clerked for Justice Elena Kagan, will make his in-person debut before the justices in the dispute with New York.

Feigenbaum argued PennEast Pipeline Co. v. New Jersey in April 2021 when the court was still closed due to Covid-19 and proceedings were held remotely by phone.

In that case, New Jersey fought a natural gas pipeline project and the company’s appeal of a lower court decision that stopped it from being able to seize state-owned land.

Feigenbaum lost despite having what he called strong constitutional sovereignty arguments. There were profound concerns about the workability of a ruling in the state’s favor in that case, he said that just aren’t present in the case against New York.

This time, he’ll argue New Jersey can lawfully withdraw form the Waterfront Commission Compact and bi-state agency it created in 1958 that is no longer working as intended. The state tried to withdraw in 2018 after the legislature found it was over regulating, impeding future job growth, and had become tainted by corruption.

“It doesn’t make any sense to say that a state is bound forever to a contract we signed about how to license workers at a port in 1953 when 70 years have passed and circumstances have changed, and the state has a sovereign right to take a new approach to regulation,” Feigenbaum said in an interview with Bloomberg Law.

He will face New York Deputy Solicitor General Judith Vale, who’s making her first appearance.

New York is asking the court to stop New Jersey from unilaterally terminating the agreement and seizing for itself the agency’s powers and assets, a move the state says will cause irreparable harm to its sovereign interests.

“The public interest weighs heavily in favor of enjoining New Jersey from reneging on its commitments and forcibly dismantling a bi-state agency that the States together designed to protect commerce, workers, and residents in both States,” New York said in a filing.

Neither New York Solicitor General Barbara Underwood nor the New York Attorney General’s Office responded to requests for comment ahead of the argument.

Appellate Culture

Campbell’s also making his first Supreme Court appearance in the student loan case, a spokeswoman for the Nebraska Attorney General’s Office said without commenting further.

Campbell previously worked as senior counsel at Alliance Defending Freedom , a conservative legal group focused on religious liberty. Hattie Troutman, a spokeswoman for the group, said Campbell will return to ADF in March as chief legal counsel and lead a team of attorneys in advancing constitutionally-protected freedoms.

Carolyn Shapiro, who served as solicitor general of Illinois from 2014 to 2016, thinks the attorneys general association has had a lot to do with the changes in how states are hiring for the role of solicitor general.

“There has been an effort nationally to not treat the SG position as a sort of ordinary line attorney job,” she said. “A lot of AGs have appointed people or recruited out of private practice, or in my case out of academia, because of their specific expertise in different areas or their professional experience.”

Before Michelle Kallen joined the Virginia Solicitor General’s Office in 2018 as deputy solicitor general, she said the US Solicitor General’s Office was seen as the apex of appellate practice.

Kallen, a partner at Jenner & Block who served as Virginia solicitor general from 2021 to 2022, said she sees more junior associates asking about state solicitors general jobs.

“Now it’s just much more a part of the appellate culture, and kind of a well-known and respected direction to go if you want to be an appellate lawyer,” she said.

—With assistance from Kimberly Robinson.