State Solicitors General, Appellate Expertise, and State Success Before the U.S. Supreme Court

Date01 September 2014
Published date01 September 2014
State Solicitors General, Appellate Expertise, and
State Success Before the U.S. Supreme Court
Ryan J. Owens Patrick C. Wohlfarth
This article examines how institutional design leads state governments to win
their cases before the U.S. Supreme Court. We analyze whether states are
more likely to prevail on the merits when they create a formal solicitor general
office and have an attorney from that office arguetheir cases before the Court.
We employ an analytical matching approach and find that attorneys from state
solicitor general offices are significantly more likely to win their cases com-
pared to other kinds of state attorneys. Accordingly, if states prioritize victory
before the Court, they should consider creating state solicitor general offices
and granting those solicitors general the authority to control their appellate
InMedellin v. Texas (2008), the state of Texas enhanced its repu-
tation as a successful litigant before the U.S. Supreme Court. At
issue was whether Texas violated the Vienna Convention on Con-
sular Relations when it arrested Jose Medellin and later sentenced
him to death (Ho 2010). Medellin was a Mexican national who lived
illegally in Texas since he was a child. After he brutally murdered
two teenage girls, the police arrested and Mirandized him.
Medellin waived his rights, confessed, and subsequently received a
death sentence. Yet, shortly thereafter, he filed for habeas corpus
relief, alleging that Texas violated his rights under the Vienna
Convention because authorities never told him he could notify the
Mexican consulate of his arrest. The case made its way to the
Supreme Court, where six justices ultimately sided with Texas. In a
nod to the quality of lawyering, even the New York Times—opposed
as it was to the Court’s decision—noted that Texas Solicitor General
Ted Cruz made a persuasive presentation (Stout 2008).
On the other hand, in Holmes v. South Carolina (2006), South
Carolina added another loss to its poor record before the High
Court. The Court held that the state erred when it refused to allow
a convicted felon to offer exculpatory evidence supporting his claim
that a third party actually committed the murder of which he was
Please direct all correspondence to Ryan J. Owens, Department of Political Science,
University of Wisconsin, Madison, WI 53706; e-mail:
Law & Society Review, Volume 48, Number 3 (2014)
© 2014 Law and Society Association. All rights reserved.
convicted. South Carolina argued that the evidence against the
defendant was so strong that he could not introduce the exculpa-
tory evidence. South Carolina had won just one out of eight (13
percent) of its cases since the Court’s 1990 term—and this case
followed the losing pattern. In a unanimous opinion cutting against
the state, Justice Alito wrote that South Carolina’s position made
“no sense.”
At least since the seminal study by Galanter (1974) on the
significance of “repeat players,” scholars of law and politics have
considered the importance of legal advocacy and expertise, and the
consequences they hold for litigants and legal change in American
society. In particular, the ability of repeat players to utilize their
multiple legal advantages—expertise, resources, reputations, and
the like—to secure more favorable legal outcomes has reinforced
the importance of specialized legal institutions. Litigants who do
not enjoy the benefits of experienced counsel and other legal
resources are subject to significant disadvantages, especially in their
ability to generate favorable legal change. And state governments
are no different. States that fail to develop specialized litigation
institutions will suffer when they defend themselves in federal
court. When, on the other hand, a state creates a specialized legal
institution that consists of knowledgeable attorneys who direct the
state’s appellate litigation, it can enhance its chances of success.
Such institutional design fosters both expertise to improve perfor-
mance and a degree of legal credibility that should enhance how
the justices view the state’s attorneys. Yet, few studies have e xplicitly
examined the role of institutional design—and specialized state
solicitors general (SGs) in particular—in shaping the litigation
effectiveness of state governments before the U.S. Supreme Court.
In this study, we consider the importance of legal (appellate)
expertise and its importance for state governments seeking to
defend their policies before the U.S. Supreme Court. What factors
lead some states to win before the Court while others seem destined
to lose? The answer, we contend, turns on institutional design and
the attributes institutions can foster. Specifically, we argue that
states with a formal solicitor general office (OSG)—and that use the
attorneys within that office to argue their cases—experience sys-
tematically greater success before the U.S. Supreme Court because
they foster team-based appellate expertise and professionalism.
Using an analytically rigorous matching technique, we review
over 400 Supreme Court cases decided between the 1989 and 2007
terms where a state was a party, and examine the conditions under
which those states won (or lost) their cases. The empirical results
demonstrate that states are more likely to win when they utilize
attorneys from a formal state OSG, even after accounting for the
general levels of institutional resources that vary across states.
658 State Solicitors General

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