March 14, 2013 Articles

The State Solicitor General Boom

What does the modern state SG movement mean for private-sector lawyers?

By Kevin C. Newsom

It seems like a long time ago now—probably because it was. In October 2003, I was happy as a clam as a mid-level associate in the appellate-practice group at Covington & Burling in Washington, D.C., where I’d been since finishing up a clerkship with Justice David Souter at the U.S. Supreme Court in 2001. Late one evening, I got a call, essentially out of the blue, from Alabama’s then-attorney general, Bill Pryor. General Pryor (now a judge on the Eleventh Circuit) said that his Solicitor General (SG)—the first in Alabama’s history—was moving on. He wanted to know if I was interested in returning home (I’m an Alabama native) to take the position as the state’s chief appellate lawyer. I was.

What I knew about state solicitors general I had learned from watching Jeff Sutton (also, as it turns out, now a judge—on the Sixth Circuit). While serving as Ohio’s solicitor general in the mid- to late-1990s, Sutton had developed an active and sophisticated U.S. Supreme Court practice litigating on behalf of the states. Most famously, he had sought and obtained the Court’s permission to present oral argument, as a non-party amicus curiae, in City of Boerne v. Flores, 521 U.S. 507 (1997). Sutton contended in that case that by enacting the Religious Freedom Restoration Act, which purported to “enforce” the Fourteenth Amendment by redefining the manner in which the First Amendment’s Free Exercise Clause applied to the states, Congress had overstepped its authority and violated cardinal principles of federalism. He won and, in a sense, the modern “SG” movement was born.

As fulfilled as I was at Covington—two partners there, Bob Long and Ed Bruce, are in many respects responsible for molding me into the lawyer I am today—the opportunity to follow in Sutton’s footsteps was simply too good to pass up. It turned out to be the move of a lifetime. The reason: experience, experience, experience. One of the things I had appreciated most about my time at Covington was the opportunity the firm had given me to take on low-paying or pro bono cases as a way of getting in-court appellate experience. By the time I left Washington, I had argued four cases in the U.S. Courts of Appeals. Not bad, I thought. But over the course of the next three-plus years as Alabama’s SG, I would argue 18 cases—three of them in the U.S. Supreme Court—covering all sorts of subjects: from voting rights to capital punishment, from free speech to eminent domain, from civil rights to criminal procedure. The on-my-feet experience I was offered as Alabama’s SG simply could not have been matched in any private-sector job. That experience has served me very well since returning to private practice, which I did a few years ago when I joined a large regional firm based in my hometown of Birmingham.

Premium Content For:
  • Litigation Section
Join - Now