The Growing Influence of State Solicitors General

0:00Michael Mongan:You see a lot of state solicitors general out there right now, kind of on the front lines of some of these culture issues, right? Like writing letters, getting their boss good press releases and media and things like that. And then you have some that are more locked in the back room, working on the briefs, just doing the oral advocacy and trying to move the law in that way.

0:24Kevin Gallagher:This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I'm Pam Carlin. Please subscribe or follow this feed on your favorite podcast app. That way, you'll have access to all our new episodes as soon as they're available. We've had attorneys general for as long as we've had governments in the United States. But in 1870, when Congress created the Department of Justice, before that the AG had to do all the work himself or hire other people to do it on a kind of spot basis, it also created an office of Solicitor General. The act provided that the Solicitor General should be, in the words of the act, an officer learned in the law, a requirement that oddly enough no longer applies to the AG himself or herself.

1:10Kevin Gallagher:Over time, that office took control over all the government's litigation in the Supreme Court. But as late as the 1980s, few states had developed a similar office. Then there was an explosion of these positions. So now 44 states have Solicitors General as well. It's very important, I think, and worth discussing what those offices are, how they function, and how they've affected developments in the law. And we have two guests today who are ideally positioned to talk about this. One of them is Mike Mongan. He's a partner at Wilmer Hale's San Francisco office and an alum of the law school. He served as the Solicitor General of California from 2019 to 2025.

1:51Kevin Gallagher:And if you think about California as the fourth largest economy in the world, you'll understand just the range of things he had to talk about. In the U.S. Supreme Court, he successfully argued in defense of the Affordable Care Act, the Deferred Action for Childhood Arrivals program known as DACA and California's Animal Welfare Statute. He also argued a number of pivotal cases in the California Supreme Court. Kevin Gallagher, our other guest, is a partner in WilmerHale's D.C. office. He served in the Virginia office of the Solicitor General from 2022 to 2025, and during that final year, he was Virginia's Solicitor General.

2:30Kevin Gallagher:Among his many achievements in that office, and we'll return to this later in the program, he managed, despite the fact that we are the most polarized nation that we've ever been, to get all 50 states from the deepest red to the deepest blue state to join together in two important cases at the Supreme Court. So welcome to the program, Mike, and welcome to the program, Kevin.

2:51Michael Mongan:Thanks. It's really great to be here. Great to be here. Thanks, Pam.

2:55Kevin Gallagher:So maybe the place to start is just exactly what is a state solicitor general, and what do you do day to day in that job?

3:03Michael Mongan:Well, you wear a lot of hats, and I'm not known for brevity, so I'm going to start by focusing on just one, and I'll let Kevin jump in. I think the most obvious role of a state solicitor general is doing appellate law, and in most states, managing a team of appellate lawyers that handle some or the entire appellate docket for a state attorney general's office. Now, one thing that is different from the federal solicitor general role is that state SG's tend to practice appellate law, both in state and federal courts and at every level of the court system. So in a bigger state like California, we tended to have pretty large U.S.

3:44Michael Mongan:Supreme Court dockets and the SG spent a lot of time on that, but also a lot of time in the California Supreme Court. And we tend to practice a lot in the intermediate federal court of appeals. And one last note on that, you would think that a state SG only spends time in their home circuit. That increasingly is not true. So California, as a result of a lot of multi-state litigation projects and certain statutes that call for review in the D.C. Circuit has a very robust practice in the D.C. Circuit, increasingly in the First Circuit, and we often practiced in other courts like the Second Circuit and the Fifth Circuit.

4:24Kevin Gallagher:Yeah, Kevin, one of the things I thought I'd raise with you about this also is, you know, when we think about like the Attorney General of the United States and the Solicitor General of the United States, they're under the control of the president. And you as the Solicitor General of Virginia were not under the control of the governor.

4:40Michael Mongan:That's right. Each different position, the executive branch within Virginia is independently elected. So you very well may have had, and frankly, we were expecting potentially with the 2025 election in Virginia to have a governor and an attorney general who are opposite parties. And so there is no control from the governor's perspective over the attorney general and vice versa. We had a governor who we were very aligned with on politics and policy. And so we intended to work very closely together, but there was definitely not any sort of level of control from the governor's office. And in fact, one of the big fights that a lot of states have is who gets to represent the state and voice the opinion of the state, the position of the state in the court system.

5:23Michael Mongan:Sometimes, and you can see it now in Kentucky and Pennsylvania and some of these other states that do have the split government, you'll have the governor trying to speak on behalf of the state, joining lawsuits, making position statements, where a lot of times there are statutes or policies where the attorney general is the one who's supposed to be speaking on behalf of the state.

5:42Kevin Gallagher:Yeah, I mean, I was once asked by the governor of Virginia to argue a case on his behalf involving redistricting in the Virginia Supreme Court, because he was a Democrat and the attorney general was a Republican. And they actually were on opposite sides of the case. So that raises this interesting question about, you know, you don't just have that, but you also have local officials in a lot of these states who have control over litigation at various points. How do you kind of manage that issue? You have like the antithesis of a unitary executive in a way.

6:17Michael Mongan:Yeah, I'll tell you, it was really eye-opening for me as someone who had worked previously in the federal government and all three branches and pretty well understood the unitary executive to come into state government. And you're exactly right. It's not just the challenge of having independently elected statewide officials. It's the challenge that in many of these states, the day-to-day criminal enforcement and some of the civil enforcement is done by elected district attorneys, sometimes elected or appointed city and county attorneys who don't always see eye to eye with the attorney general.

6:51Michael Mongan:My experience in California was that a lot of these things are worked out through a process of informal accommodation and behind-the-scenes discussions, and you try to avoid being in open conflict in the courts and asking them to resolve this. I was astonished at how little precedent there is, given how long this system has existed in California, about who at the end of the day, for example, could control the state's position in a criminal case. I think that the attorney general and most solicitors general would take the view that it is the attorney general. In California, the Constitution says the AG is the chief law officer of the state.

7:32Michael Mongan:And so if, for example, a DA took a people's appeal in a criminal case and that was litigated up to the Supreme Court of California or the federal Supreme Court, our view would have been that we get to go present argument and decide what the position of the state is. But I'm not sure that all the DAs would agree. And I think that there remains a lot of interesting issues for academic inquiry and perhaps litigation in that area.

7:57Kevin Gallagher:Well, and also you guys, you know, state solicitors general have really different, really different jobs that vary from state to state. Because in Texas, for example, I know the solicitor general has no control over criminal cases. And I think that was deliberate, that they sort of wanted to avoid putting themselves in there. So when you talk to your colleagues from other states, how much variation did you see, Kevin, in how they conceived of their job and how they were able to perform it?

8:24Michael Mongan:Yeah, there was a ton of variation, both in the job responsibilities that folks had, as well as the way that they conceptualized the role. I think you see a lot of state solicitors general out there right now, kind of on the front lines of some of these culture issues, right? Like writing letters, getting their boss good press releases and media and things like that. And then you have some that are more the, you know, locked in the back room, working on the briefs, just doing the oral advocacy and trying to move the law in that way. And then talking to colleagues in other states. I mean, a friend of mine was one of the first solicitor general in a particular state and basically was creating the office from scratch and was talking to us about how do you how do you do this?

9:06Michael Mongan:How do you structure your office? How can we make sure that all appeals are running through me and they're not things in the Supreme Court of the United States that I'm not aware of? Those are all things that offices, especially the newer ones, have to work through to make sure that they can get to a point where, like California, like Virginia, may be more established. Yeah.

9:23Kevin Gallagher:So one of the things that, and you kind of alluded to this before, one of the things that the state SGs do is they often work closely with each other, especially on issues that are common across states. And so I thought maybe, Kevin, you could talk a little bit about managing something that I wouldn't have thought possible until I heard about it from Mike, which is that you managed, even though there are a lot of cases where the states are litigating against each other. And I take it, Mike, that one of the reasons why California litigates so often outside of California is it likes to file cases in the First Circuit where there are where they're more likely to get a panel they like than necessarily in the Ninth Circuit.

10:03Kevin Gallagher:But you managed to get all of the states together. Can you talk a little bit about how you did that and how often that happens?

10:11Michael Mongan:Yeah, I'd be happy to. It was something that was very surreal at the time. And now years later, I realize how big a deal it was at the time. It was just I was like a shark smelling blood in the water. I thought once we got to 44, 45 states, we can do 50. We can do this. And so how it happened was that my boss, the attorney general of Virginia, cared a lot about veterans issues. It's a very big issue in Virginia. There's a ton of veterans in the state, in the Commonwealth, excuse me, don't want to make the Virginians mad here. So we had an opportunity to support a Virginia veteran on an education benefit issue.

10:42Michael Mongan:And we actually wrote a brief in the Rudacill case, which went up to the Supreme Court of the United States, about veterans education benefits. And now this was back down in the Court of Appeals of Veterans Claims, where the court was basically not applying that Supreme Court precedent, except in the exact facts of the case. So basically, if you did not fall into that exact factual situation, the Court of Appeals had decided that it was not going to give you benefits. And so now we have this big issue where there's all these Virginia veterans who were not getting the benefits that they had served this country to get.

11:14Michael Mongan:So we wrote a brief and we shopped it to there's different ways of getting multi-state collaboration. There's the more partisan ways and there's the bipartisan ways. And so we sent it through the National Association of Attorneys General to see who would be interested in it, thinking there are probably states on both sides of the aisle that care about these issues. I didn't know that it was all 50. I didn't know that we would be able to get all of them. And so as far as how often it happens, someone from a different office that we didn't work very closely with at all reached out to me in the process and said, I've been working in this for 20 years.

11:45Michael Mongan:I've never seen a 50 state brief. So I don't know if I could take that to the bank as an accurate representation of history. But I will sort of like, please do not disabuse me of this notion. I have to briefly correct the record. Before my time, California filed a 50-state brief in Maryland against King, which is another good example of where states sometimes come together. It was a criminal case presenting a Fourth Amendment challenge to Maryland's system of creating a database for arresting DNA profiles. And a lot of states have those types of laws, and a lot of them benefit in terms of crime solving.

12:24Michael Mongan:And I'm told that we filed a 50 state amicus brief. And it was interesting because it was filed over the holidays. So a lot of the AGs were gone. And I remember being told that they had to be hunted down on the Appalachian Trail or wherever it is that politicians go on vacation. But there have been a few examples, but it's a very rare feat.

12:45Kevin Gallagher:Yeah, but one of the things you're kind of pointing out there is that there are a lot of the cases that go to the U.S. Supreme Court are criminal cases in which states, regardless whether they're red or blue, are often going to have very similar issues. They all have an interest in having the ability to get DNA from people they've arrested. They all have a desire to have the exclusionary rule limited in various ways and the like, as opposed to cases that involve litigation against the federal government, where depending on which party is in power and which states are filing, you end up with a very different kind of lineup.

13:23Michael Mongan:Yeah, that's exactly right. And I think, to be frank, there were more bipartisan multi-state amicus briefs, I suspect, in the past than there are today, but you do still see them. And they tend to be in areas where the states share sovereign interests as states, and those interests are genuinely threatened. So the criminal law, criminal procedure cases, you see that sometimes in consumer protection cases or in cases where, frankly, it's just good politics left, right and center. And, you know, Kevin's example may have fallen into both of those buckets, but that's where you're more likely to see a red, blue, purple coalition.

14:09Yeah, it would seem to me like preemption is another area, you know, both consumer protection preemption, but also just regular old tort preemption.

14:18Kevin Gallagher:And the interesting thing there, of course, is that the Supreme Court itself doesn't break down along left right lines there. I mean, Justice Thomas doesn't believe in implied preemption at all, even though that would be something that the business community like to see everything preempted. He's kind of the opposite end of the spectrum there.

14:36Michael Mongan:Yeah, that's exactly right. And I just will give a shout out to our mutual friend, our high watermark. We were about five states short of Kevin. But when I was SG, we got 45 states to join a preemption brief. And it was a case about whether ERISA preempts state regulations on pharmacy benefit managers. A lot of states have those regulations. And our mutual friend, Pam, Josh Potashnik wrote an excellent brief. We got a lot of states to join. I don't know who those five holdouts are, but they're not on my Christmas card list.

15:08Kevin Gallagher:Yeah, maybe those are five of the six states that don't have an SG. And so they didn't understand the importance of having a unanimous brief there. One other area that obviously states care a lot about is stuff that goes across jurisdictional lines. I mean, big tech is a particularly good example of that. How do you think about when you approach the other states? Is it you reach out SG to SG? Is it the Department of Consumer Affairs reaching out? I mean, what are the mechanics like, Kevin, of getting everybody onto a brief?

15:41Michael Mongan:It really does depend. It's going to depend by state. It's going to depend by issue. It's going to depend by brief. So if it's an investigation into some big tech company, which was certainly a booming business when we were both in office, that would often be handled at a consumer protection civil division level. There would often be some sort of strategic decisions being made at a senior staff level, including with the SG often in the room, but the SG's office is not handling the day-to-day of that. Most amicus briefs, the big litigations, multi-state litigations that you'll see, a lot of that, if not all of that, is going to be run through the SG's office.

16:16Michael Mongan:So again, there's sort of like formal mechanisms for joining where you have NAG and these other groups that they'll have formal listservs and there's a formal process to filing on or joining onto something. Then there's the more informal process. I don't know how the Democrat side did it, but the Republican side, at least, there was basically just emails exchanged. Hey, here's a brief. Would you like to join it? And it's a little bit more informal that way. And a lot of that does come from the sort of personal capital of knowing the whole group, working very well and collaborating well together so that I can get on the phone with the SG from X state, say, hey, we had sent that brief.

16:52Michael Mongan:Really think that you'd be interested in it. Your boss signed on to this one in the past. maybe you should think about joining this. And often on that call or very shortly after, we would get them to join. So it's a much more collaborative on a face-to-face personal contact level than maybe the other sorts of things.

17:07Kevin Gallagher:So that's you've already drafted the brief and you go and say, hey, want to join this. But presumably what you don't want to have happen is three or four different SG's offices all start drafting briefs. And then it's wasted motion at the very least and awkward at the very best. So how much coordination goes on before anybody puts pen to paper about we ought to have a brief here and here's who's going to write it? I mean, at the very dawn, you know, Jeff Sutton, who was the SG of Ohio at the time and one of the first of the new generation of SGs, Jeff Sutton was like basically being moved around the country to argue 11th Amendment state sovereign immunity cases.

17:51Kevin Gallagher:He argued on behalf of a number of different states and the like. I mean, how does that get done? Like, who starts the process of saying, we really ought to have a brief here, and you, Kevin, or you, Mike, ought to take the lead on being the drafter, and if it's a case that's going to be argued, being the person who argues it?

18:10Michael Mongan:But there's a lot of different ways that that plays out. If you were approaching this in the more bipartisan fashion, there is a man named Dan Schweitzer at the National Association for Attorneys General, who is a national treasurer. And he coordinates multi-state amicus briefs. And as part of that process, you can reach out to Dan and say, hey, we're thinking about drafting an amicus brief in this case and sort of dibs. And that can be helpful. And if another state is interested in collaborating, Dan will put you in touch and maybe you'll co-write it or one state will yield to the other. These days, as Kevin indicated, there's a lot of blue state briefs and red state briefs.

18:53Michael Mongan:And usually this is done by email. You have a pretty good sense of what states are going to have an interest in a particular topic and are likely to write. and often the solicitor general will send an email around to a group of four or ten SGs and say, hey, we're thinking about writing on this. Is that okay? Or we really think somebody should write, but we don't have the time for it. Is anybody else taking a look at this? And usually that's something that can be worked out at the SG level or if it's a particular subject matter, maybe the consumer protection or environmental attorneys will have a relationship and hash that out.

19:30Michael Mongan:Sometimes it does end up being a conversation between AGs or their chief deputies because it can be important in their view to take a leading role in some of these cases. So being in pole position on a brief is something that they care about in certain cases and they want to talk to the other principal to arrive at a accommodation that makes sense to all of them.