The Growing Influence of State Solicitors General

Kevin Gallagher: You see a lot of state solicitors general out there right now on the front lines of some of these culture issues. They’re writing letters, getting their boss good press releases and media, and then you have some who are more locked away in the back room, working on briefs, doing oral advocacy, and trying to move the law in that way. 

Pam Karlan: This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I’m Pam Karlan. 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 the solicitor general. The act provided that the solicitor general should be, in the words of the act, “an officer learned in the law,” which is a requirement that, oddly enough, no longer applies to the AG himself or herself.

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 to discuss what those offices are, how they function, and how they’ve affected developments in the law. We have two guests today who are ideally positioned to talk about this. 

One of them is Mike Mongan. He’s a partner at WilmerHale’s San Francisco office and an alum of the law school. He served as the solicitor general of California from 2019 to 2025, and if you think about California as the fourth-largest economy in the world, you’ll understand 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.

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, to join together in two important cases at the Supreme Court.

So welcome to the program, Mike, and welcome to the program, Kevin.

Michael Mongan: Thanks. It’s really great to be here.

Kevin Gallagher: Great to be here. Thanks, Pam.

Pam Karlan: So maybe the place to start is: what is a state solicitor general, and what do you do day to day in that job?

Michael 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 all of the appellate docket for a state attorney general’s office. Now, one thing that is different from the federal solicitor general role is that state SGs 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. 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 tended to practice a lot in the intermediate federal court of appeals. One last note on that is that you would think that a state SG only spends time in their home circuit.

That increasingly is not true. California, as a result of a lot of multistate 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.

Pam Karlan: Kevin, one of the things I thought I’d raise with you about this also is that when we think about 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.

Kevin Gallagher: That’s right. Each different position in 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 were of opposite parties. 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 tended to work very closely together, but there was definitely not any sort of level of control from the governor’s office. 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, or the position of the state in the court system.

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.

Pam Karlan: Yes, 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 it raises this interesting question about how 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 manage that issue? You have the antithesis of a unitary executive, in a way.

Michael Mongan: Yes, I’ll tell you, it was really eye-opening for me as someone who had worked previously in the federal government in 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 enforcements are 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. 

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. 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.

Pam Karlan: Also, state solicitors general have 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 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?

Kevin Gallagher: Yes, there was a ton of variation, both in the job responsibilities that folks had and in the way that they conceptualized the role.

You see a lot of state solicitors general out there right now on the front lines of some of these culture issues. They’re writing letters, getting their boss good press releases and media, and then you have some who are more locked away in the back room, working on briefs, doing oral advocacy, and trying to move the law in that way. 

And then, talking to colleagues in other states, a friend of mine was one of the first solicitor general in a particular state and basically was creating the office from scratch. They were talking to us about: How do you do this? 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 or Virginia, they may be more established.

Pam Karlan: Yes, one of the things that—and you kind of alluded to before—the state SGs do is they often work closely with each other, especially on issues that are common across states.

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 they’re more likely to get a panel they like than necessarily in the Ninth Circuit. 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?

Kevin Gallagher: Yes, 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, I was like a shark smelling blood in the water. I thought once we got to 44 or 45 states, we could 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—the commonwealth, excuse me.

I don’t want to make the Virginians mad here. So we had an opportunity to support a Virginia veteran on an education benefit issue, and we had actually written a brief in the Rudisill 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 for 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 under 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 are not getting the benefits that they had served this country to get.

So we wrote a brief, and we shopped it to…There’s different ways of getting multistate 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. 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 and I’ve never seen a 50-state brief.”

I don’t know if I can take that to the bank as an accurate representation of history, but I will sort of… Mike, please do not disabuse me of this notion.

Michael Mongan: I have to…

Kevin Gallagher: I will try to live that…

Michael Mongan: I have to briefly correct the record. Before my time, California filed a 50-state brief in Maryland v. 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 arrestee DNA profiles, and a lot of states have those types of laws, and a lot of them benefit in terms of crime solving. 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.

I remember being told that they had to be hunted down on the Appalachian Trail or wherever it is that politicians go on vacation. There have been a few examples, but it’s a very rare feat.

 

Pam Karlan: Yes, but one of the things you’re pointing out there is that there are a lot of the cases that go to the U.S. Supreme Court that 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. 

Michael Mongan: Yes, that’s exactly right. I think, to be frank, there were more bipartisan multistate 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, 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.

Pam Karlan: Yes. It would seem to me like preemption is another area, both consumer protection preemption but also just regular old tort preemption. The interesting thing there is that the Supreme Court itself doesn’t break down along left-right lines there. Justice Thomas doesn’t believe in implied preemption at all, even though that would be something that the business community would like to see everything preempted. He’s at the opposite end of the spectrum there.

Michael Mongan: Yes, that’s exactly right. I will give a shout-out to our mutual friend. Our high water mark, 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 Patashnik, 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.

Pam Karlan: Yes, maybe those are five of the six states that don’t have an SG, and so…

Michael Mongan: Yes, right.

Pam Karlan: …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. Big tech is a particularly good example of that. How do you think about this: When you approach other states, is it you reach out SG to SG?

Is it the Department of Consumer Affairs that reaches out? What are the mechanics like, Kevin, of getting everybody onto a brief?

Kevin Gallagher: 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. 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 and the big multistate litigations that you’ll see, a lot of them, if not all of them, are going to be run through the SG’s office. 

So again, there’s sort of like formal mechanisms for joining, where you have NAAG 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 and say, “Hey, we had sent that brief. I 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, face-to-face, personal contact level than maybe the other sorts of things.

Pam Karlan: So 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 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.

At the very dawn, Jeff Sutton, who was the SG of Ohio at the time and one of the first of the new generation of SGs, was basically being moved around the country to argue Eleventh Amendment state sovereign immunity cases. He argued on behalf of a number of different states and the like.

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.”

Michael Mongan: But there’s a lot of different ways that plays out.

If you are 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 multistate 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 call 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, 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 4 or 10 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.

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 an accommodation that makes sense to all of them.

Pam Karlan: This is Stanford Legal. Today I’m talking with Kevin Gallagher and Mike Mongan, who were both state solicitors general, Kevin in the Commonwealth of Virginia and Mike out here in California, about that job, what that job does, and how it fits into the legal ecosystem overall. So as I mentioned when we first began, state SGs are a relatively new phenomenon, certainly at the extent and with the importance that they now have, as opposed to 20 years ago or the like.

And one of the things is the sort of law: third law of thermodynamics of legal practice. If you’re going to have more specialization on one side, you’re going to have more specialization in response to that. One of the things that’s interesting to me is you now are both part of a practice group, in addition to an appellate practice group at Wilmer, which is something that firms have had for a gazillion years. Wilmer has a number of people also from the U.S. SG’s office, most notably Seth Waxman, who was solicitor general for quite a bunch of time during the Clinton administration.

You now have a state AG practice group. What insights from being state SGs do you think you bring to that kind of practice that, had you not been a state SG, you wouldn’t have thought about? 

Kevin Gallagher: Yes, I’m happy to jump in first. So I was at WilmerHale for six and a half years prior to being in the attorney general’s office.

Our state AG group has definitely grown in both size and prominence since then, but there was a state AG practice prior to me leaving, and let’s just say I was not part of it because I didn’t have any expertise. I never spent any time in state government. I just didn’t know that world at all. So really what led to me coming back to the firm and being part of that group, as well as the others, is that I spent four years in state government.

I spent four years in an attorney general’s office. I got to know people on both sides of the aisle, certainly better on the Republican side, but in all 50 states. Now when we have clients who need issues dealt with, whether at these conferences that AGA, MAG, and the Republican and Democratic groups host, they need help through those.

If they have an investigation, a CID, a letter that was sent to them, or they have litigation with a state AG, it is good to have someone who is their legal counsel and who knows the people on the other side. A lot of the time, there could be conversations had, counseling done, where there could be a productive solution reached because of relationships that Mike and I and other people at our firm who’ve worked in state AG offices have. 

So I think it’s a kind of burgeoning practice, like you mentioned, Pam, because of how much state AGs are now doing. To have people in private practice who’ve spent time in those offices, know people there, know how the offices think, know where they might be going with an investigation or a litigation or a thing of that nature, I think that’s just absolutely critical to our clients. 

Michael Mongan: Yes, and I would add a couple thoughts. Of course, as two people who have very recently moved from public service to the law firm, we’re very scrupulous about following the ethical restrictions about who we can talk to in government. But I think that this is really a reflection of how much more active the state AGs are being, both individually and collaboratively, not just in terms of litigating against the federal government, but because of the current ecosystem where the AGs are meeting constantly, coordinating constantly, and really trying to get out there and make a name for themselves in a way that exceeds what they’d done in the past. I think major clients of all law firms are really understanding that in the future they need to be thinking about how to engage in states in the way that, for decades, they thought about how to engage with the federal government.

One thing that I found interesting when I was going around and talking to law firms and deciding where to go next, I think every single firm that I talked to said that they were very focused on AI and they were very focused on AGs. But that’s more true at some places than others. But it can be really helpful to have people who are not only part of a state AG practice, but who have lived in that world and really understand how state AGs and SGs think about these issues, and how to approach it strategically when you’re on the other side of the V.

Pam Karlan: Yes, I found spending some time at the U.S. Department of Justice just realizing there are all these things you don’t realize before you go into government about just how the government works. One of the things that was stunning to me was how the Civil Rights Division only has certain forms of litigating authority, and so there are all sorts of cases that you would think the Civil Rights Division could bring that it just couldn’t because it didn’t have the itigating authority to bring them.

Until you actually spend time inside the government, you don’t realize just how those things work. So it’s not just the relationships you build; it’s also just understanding the structure of something that looks like the federal government in terms of nomenclature but is totally unlike the federal government in some of the ways it operates.

Michael Mongan: Exactly. 

Pam Karlan: So, looking back on your time in your SG’s offices: what was your favorite case to argue, and why was it your favorite?

Kevin Gallagher: Yes, I can jump in first, and then Mike can finish us out. I’ll say two. It’s a little bit cheating, but they’ll be short. One is probably my favorite argument, but I lost it, and so you never really want to focus on the losses.

So then I’ll mention one that we won. But the one that I argued that was just a ton of fun— it was my biggest argument as the actual solicitor general. I spent four years in the office, but a shorter time as the SG, and we had this big fight between the governor and the general assembly as to who got to appoint people to university boards.

So it was just this very surreal moment, being there in front of the Virginia Supreme Court on behalf of the governor of Virginia, with half of the important people in Richmond behind me, as to this big fight about who could be on the university boards. It was just a really great time. Unfortunately, we lost, so I won’t linger too much on that.

The one that we did win was a fight about the Dulles Greenway, which is a toll road just past Dulles Airport in Northern Virginia, and about whether they could raise tolls very significantly. That’s an incredibly unpopular thing to do in Virginia, and so we were on the side of the State Corporation Commission, saying that the company that was trying to raise rates had not met the statutory factors. 

So it was great to be up there, fighting for the consumers of Virginia to keep tolls low. I have some friends that are not particularly interested in the law, but were very keyed into that case because they drove that road a lot. So that was a lot of fun to do, and we did in fact win that, so I’ll focus more on that one.

Michael Mongan: In the spirit of bipartisanship, I’m going to cheat and I’m also going to name two. In the early period of my tenure as solicitor general, we developed a bit of a niche practice in defending important federal policies that the U.S. Department of Justice, for one reason or another, refused to defend, and Pam, you mentioned a few of these at the top.

But my first argument in the U.S. Supreme Court actually was in 2019 in the DACA case, and that was a really important case to me, probably the most important thing professionally that I’ll ever do because of the human stakes there: hundreds of thousands of people who had come to this country as children and built lives and families here, whose lives and families really hung in the balance.

It was an important case for me professionally as well because it was a case that I had worked on very closely with our colleagues in the civil rights enforcement section from before we even filed the complaint, and I followed it all the way up and argued it in the Ninth Circuit. It was one of the happiest days of my life when we got the result from the Supreme Court in that case.

In 2020, I argued California against Texas, which had to do with the constitutionality of the Affordable Care Act again, and that was special to me because my very first job out of undergraduate was working at the Finance Committee in the Senate on health policy, and I worked with a number of the public servants there who ended up going on to draft much of the Affordable Care Act.

It was a full circle moment to be able to help argue in defense of that. And of course, I should say, all of these cases we talk about as SGs and appellate advocates, you talk about, “I argued the case,” but every one of them is a very collaborative effort where there’s dozens of people behind the scenes and a big multistate coalition working together to get, hopefully, a good result.

Pam Karlan: Yes, that’s one of the things that I would think would be most satisfying about this: you’re a public servant with a team of people who are also committed public servants, doing what you think is right, which is a luxury sometimes for lawyers to get to argue what they think is right.

So I’d like to thank our guests today, Kevin Gallagher and Mike Mongan, both now at the firm of WilmerHale, but former solicitors general of Virginia and California, respectively.

This is Stanford Legal. If you’re enjoying the show, please tell a friend and leave us a rating or review on your favorite podcast app.

Your feedback improves the show, and it helps new listeners to discover us. I’m Pam Karlan. See you next time.