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

• DOI: http://doi.org/10.1111/lasr.12095
• Date: 01 September 2014
• Published date: 01 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

litigation.

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: rjowens@wisc.edu.

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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