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Who Argues for the States in the U.S. Supreme Court?

Dan Schweitzer, Director and Chief Counsel, NAAG Supreme Court Advocacy

Every once in a while, an attorney general will ask me, “Should attorneys general argue in the U.S. Supreme Court?” I invariably answer that it depends. It depends on the subject matter of the case, how complex the issue is, how much preparation time the argument would require, the attorney general’s background and experience, the size of the attorney general’s office, and whether the office has a solicitor general hired specifically to handle the office’s most important appeals. All in all, it’s a tricky issue.

Less tricky is assessing who has, in fact, been arguing for the states in the Supreme Court. To answer that question, I reviewed the oral arguments presented by states in the three and a half most recent Supreme Court Terms and the oral arguments presented in the 2005 to 2007 Terms. The results were striking, and confirm the increasing prominence of state solicitors general (SG).

Here are the results:

Before commenting on these results, let me provide a few words on methodology. I chose these two time periods because each covers enough arguments to be statistically significant; each covers a roughly similar number of arguments; and enough time has elapsed between them to reflect an evolution in attorney general office practice. The 2014-2017 Term time period goes through the oral arguments scheduled for December 2017. (The Court has not issued its argument calendars for January and February 2018.) I used my best judgment in placing arguing attorneys in the various categories. Although reasonable people might disagree with some of my calls, the most noteworthy takeaways from these figures would not be affected by moving a person or two from, say, the Civil AAG or DAG category into the Senior Member of Civil Litigation Unit category.

So what are the main takeaways? Most notably, state solicitors general and their deputies are dominating state advocacy before the Supreme Court. Fully two-thirds of the states’ arguments are now made by them, compared to only one-third a decade ago. And if you exclude arguments by outside counsel to see who within an attorney general’s office is making arguments, SGs and deputy SGs account for more than 75 percent of arguments in recent years (compared to 37 percent in the earlier period).

Solicitors general’s dominance in AG-office arguments should not come as a surprise. Over the past decade, more and more states have recognized the value of solicitor general units and have brought in elite appellate lawyers to head those units. The Justices and bar have taken notice. One observer recently commented: “Gone is the U.S. Solicitor General’s office’s monopoly on government appellate expertise, with a reported 39 states now boasting their own dedicated SG positions to boost the quality of advocacy in the Supreme Court and federal and state courts of appeal, a development that is enticing some of the nation’s top appellate talent with the chance to enter the ring in high-stakes cases.”1 Justice Scalia stated that “[t]he performance of State solicitors general is particularly fine,” and he expressed the hope that “the formation of that office in the States” will “continue to [be] encourage[d].”2

With solicitors general and their deputies handling more and more of the states’ arguments in the Supreme Court, other state attorneys had to give them up. Who? The answer is everyone else. Let’s start with the attorneys general. No attorney general argued before the Court in the 2014, 2016, and first-half-of-2017 Terms; and only two argued in the 2015 Term. By contrast, eight attorneys general argued in the 2005 to 2007 Terms. While that wasn’t a huge number — two to three a Term — it dwarfs attorneys general current presence behind the lectern.

The opposite end of the AG office organizational chart suffered an even greater reduction in arguments. Assistant attorneys general (AAG; called deputy attorneys general in California) argued 18 cases in the 2005 to 2007 Terms (more than 25 percent of the total), but only 3 cases in the 2014 to 2017 Terms. Again, hardly surprising. When an attorney general’s office creates an appellate unit and staffs it with first-rate appellate lawyers, that unit will inevitably argue cases that more “junior” lawyers in the office otherwise would have argued. And that is especially so when a case reaches the Supreme Court.

In between attorneys general and AAGs are chief deputies and the heads of criminal sections. You will note that chief deputies rarely argue in the Court. As I have written elsewhere, chief deputies “almost invariably have a host of other responsibilities that make it difficult to spend a significant amount of time on the office’s appellate practice. Only a solicitor general has the time and focus to broadly improve the office’s appellate product.” Meanwhile, the heads of criminal sections are arguing only half as many cases today as a decade ago, reflecting the increasing faith AG offices are placing in their solicitor general units.

Finally, a word on outside counsel. AG offices used outside counsel at the same rate — 13 percent of the time — in both periods. In other words, states don’t use them often: just two or three times a Term. Sometimes the state hires outside counsel at the start of the litigation because the case is immensely important and the office believes outside counsel is necessary to ensure the best chance of success. Other times, a state concludes that it needs to retain an experienced Supreme Court advocate to get certiorari granted. Still other times, a case involves an unusual area of law in which few members of the AG office are expert. And then there’s Trinity Lutheran Church v. Comer, 137 S. Ct. 2012 (2017), which presented such a complicated situation that a law school course could be taught on it.3 For all that, outside counsel arguing for a state in the Supreme Court remains the relatively rare exception.

* * * * *

Is the increasing dominance of solicitor general units a positive thing? The consumers (so to speak) of our arguments believe it is. In 2010, as the trend was gaining increasing force, Justice Stevens stated that “I think particularly the states are much better represented now than they were when I first came on the Court.”4 And Justice Kagan more recently remarked that “the state attorneys actually are exceptional . . . . [N]ow most states have solicitor general offices which have really exceptional, skilled, experienced appellate counsel.”5 Well-deserved praise, indeed.


[1]See Once Overlooked, State SGs Enjoying Time in the Sun, Law360 (April 14, 2017).

[2] Letter from Justice Antonin Scalia to Dan Schweitzer (Nov. 24, 2008) (on file with author).

[3]See Amy Howe, Both Sides Urge Court to Go Ahead in Church-State Case, SCOTUSBlog (April 18, 2017, 2:37 PM), http://www.scotusblog.com/2017/04/sides-urge-court-go-ahead-church-state-case/.

[4] Bryan Garner, Interview with Supreme Court Justice John Paul Stevens, 13 Scribes J. Leg. Writing 41, 45 (2010).

[5] U.S. Dep’t of Just., 50 Years Later: The Legacy of Gideon v. Wainwright, Ceremony Part 2, (March 15, 2013) (video at 20:20-20:38), https://www.justice.gov/atj/department-justice-50th-anniversary-activities.

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