The trend of larger and increasingly active state solicitor general offices continues to spread across the nation. In February, the Federalist Society’s Federalism and Separation of Powers Practice Group hosted a panel with four current and former state SGs to discuss the growth and impact of the office. Judge Britt Grant of the U.S. Court of Appeals for the Eleventh Circuit, a former SG of Georgia, moderated the panel.
A solicitor general might be described as the most senior practicing attorney in the state—writing briefs and going to court to advance the state’s legal interests. Many states have only recently created an office of the solicitor general, consolidating work that was once performed by multiple divisions of the attorney general. Where SGs exist, states continue to expand the office’s legal capacity. Offices that once contained a single attorney and paralegal have grown into multifunctional teams of more than a dozen attorneys in some states.
Elbert Lin, reflecting on his former role as the first SG of West Virginia, categorized the core responsibilities SGs perform. First, SGs may lead the state’s appeals under state law. Second, SGs may lead all federal litigation for the state. Third, SGs may produce opinions for the state, providing legal recommendations on questions of state law to state and county officials in a manner parallel to the federal Office of Legal Counsel. Fourth, SGs may serve as senior advisors to the attorney general on legal and policy issues. Each state varies the mix of these responsibilities performed by its SG. Some states concentrate SGs on civil appeals while delegating criminal appeals to a separate or supervised division. In others, opinions are produced by a distinct division of the AG.
The character of most AGs as independently elected executive officers manifests itself in the work of an SG. As an appointee of the AG, an SG may occasionally find himself between two duties in tension: the duty to defend state law and the duty to advance the AG’s legal and political priorities. Variations in state law influence how this tension is resolved. Benjamin Flowers, Solicitor General of Ohio, described a case in which the Ohio Attorney General took a legal position contrary to that of the Governor and state agency. Some states, including Ohio, allow the AG discretion to prohibit an agency from raising an appeal or assign outside counsel for the agency. SG offices offer a unique alternative. Flowers described the experience of having his office divided into two screened-off teams—one representing the AG and one representing the state agency. Litigation culminated in oral argument between Flowers and his own chief deputy. Though intra-executive disputes of this sort are relatively rare and often foreseen in advance of litigation, SGs provide a helpful mechanism for their resolution. To preserve credibility before the judiciary in these settings, it is essential for SGs to operate under consistent principle by which the duty to defend state law and the duty to serve an independent AG are reconciled.
Because states’ legal and political interests frequently align, networks of state SGs have become key coordinators in multistate litigation efforts. A constant stream of multistate amicus opportunities runs across every SG’s desk, and a variety of state strategies drive participation. Ryan Park, Solicitor General of North Carolina, described his office’s prioritization of multistate efforts that garner broad consensus. These bipartisan alliances, sometimes unexpected and recurring, demonstrate that the litigation is motivated by concern for issues of broad importance to states generally rather than mere political opportunism. Frequent multistate coordination of this sort contributes to the close and congenial community of SGs spanning the country.
Only a small corner of SGs’ work garners this public attention. An SG’s daily duties involve appellate practice of the highest caliber as well as the managerial skills required to run a multifunctional office. Whatever the mix of responsibilities assigned to the role, the wake of legal success that follows current state SGs will likely motivate the further spread and expansion of SG offices across the nation.
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].