Jeff Johnson, Scott Stewart, and Matt Rice discover the intricacies of being a state solicitor general and the impact of their work on state and national levels.
In this episode of our special Regulatory Oversight: Solicitors General Insights series, Jeff Johnson, a former deputy solicitor general in the Missouri Attorney General's office, welcomes Scott Stewart, solicitor general of Mississippi, and Matt Rice, solicitor general of Tennessee. The episode uncovers the intricacies of being a state solicitor general and the impact of their work on state and national levels.
Scott and Matt discuss the unique aspects of their positions, emphasizing their roles as lead advocates in appellate litigation and the importance of maintaining consistency across vast state litigation. The conversation covers their day-to-day responsibilities, including drafting briefs, preparing for arguments, and providing strategic advice. They also touch on the challenges of managing time between these tasks and the rewarding nature of their work in public service. They conclude their discussion by exploring the evolving landscape of administrative law, including the implications of recent Supreme Court decisions on the major questions doctrine and nondelegation doctrine.
Regulatory Oversight Podcast — Solicitors General Insights: A Deep Dive With Mississippi and Tennessee Solicitors General
Hosts: Stephen Piepgrass
Guest Host: Jeff Johnson
Guests: Scott Stewart and Matt Rice
Stephen Piepgrass:
Welcome to another episode of Regulatory Oversight, a podcast that provides expert perspective on regulatory enforcement trends. I'm Stephen Piepgrass, one of the hosts of the podcast. I'm also the leader of Troutman Pepper Locke's Regulatory Investigations Strategy and Enforcement, or RISE Practice Group. This podcast features insights from members of the RISE Group, including its nationally ranked state attorney's general practice, as well as guest commentary from business leaders, regulatory experts, and current and former government officials. We cover a wide range of topics affecting businesses that operate in highly regulated areas.
I want to remind our listeners, if you enjoy our podcast, please visit and subscribe to our blog at RegulatoryOversight.com. Our blog and podcast are great ways to stay up to date on regulatory changes across the country.
Today, my colleague, Jeff Johnson, is joined by Mississippi Solicitor General, Scott Stewart, and Tennessee Solicitor General, Matt Rice, to discuss the scope of their duties, what inspired each of them to pursue careers in public service, and hot-button administrative law topics, like the Chevron Doctrine. By way of introduction, Jeff Johnson is a member of our RISE Practice Group and is the former Deputy Solicitor General from the Missouri AG's office. In that role, Jeff provided practical guidance to elected officials advised on consumer protection investigations and represented the state of Missouri and appeals in critical litigation in federal and state courts.
Solicitor General Scott Stewart was appointed to his position by Missouri AG Lynn Fitch in 2021. Scott is the state's lead advocate for appellate litigation. He directly handles appeals for the state, oversees the state's appellate litigation strategy, and facilitates the state's involvement in amicus curiae briefs. Scott has litigated and presented oral argument in the U.S. Supreme Court and in all regional federal courts of appeals and in trial-level courts across the country. Prior to his current role, Scott served as a deputy assistant attorney general in the U.S. Department of Justice and worked as a litigator in private practice. He's also served as a law clerk for Supreme Court Justice Clarence Thomas and for a circuit judge in the Ninth Circuit Court of Appeals.
Solicitor General Matt Rice joined the Tennessee AG's office in 2022 as special assistant to the Solicitor General before stepping into the SG role in early 2024. As the state's chief appellate attorney, Matt manages all litigation in state and federal appeals courts and oversees all published opinions by Attorney General Jonathan Skrmetti. Before joining the AG's office, Matt worked in private practice in between clerking for Supreme Court Justice Clarence Thomas and the honorable Sandra Ikuta in the Ninth Circuit Court of Appeals. Scott, Matt, and Jeff, I want to thank you all for joining me today. I know we're all looking forward to your discussion.
Jeff Johnson:
Thank you, Stephen, for the warm introduction. This is the inaugural episode of a series highlighting some of the hardest-working and brightest public servants there are, state solicitors general. Scott and Matt, thank you both for being here. Before we get into a discussion, I'll provide the standard disclaimer that the views, observations expressed by the guests are their own. Solicitor General is a mysterious title and, like the 50 states, every attorney general does things differently. What does being the Solicitor General mean for your states in particular?
Scott Stewart:
To start it off, great to be with you, Jeff. Great to be with you, Matt. Thanks so much for having me. It is an honor to be the Solicitor General of a state. I'm grateful to be the Solicitor General of Mississippi. In short, at least in our state, and I think this is generally true, the Solicitor General is the state's lead advocate for appellate litigation. The way I like to think of it is every case that a state has is important, but whenever a case leaves a trial court, it becomes even more important, because it becomes not just about the case, but about the precedent, the rule that's going to govern all these cases. I think maybe a key insight behind having a Solicitor General is the idea that you want somebody really keyed in, experienced with appellate law, legal issues, and doing everything that can be done to adopt the precedential rules of law that are correct and that will best benefit the people of the state.
Matt Rice:
I would echo what Scott says. I think it's a tremendous benefit to any office to have a set of appellate specialists that not only can provide a different view of the case. As you all know, oftentimes the trial lawyers get dialed in on the facts and that particular dispute, and sometimes it's valuable to have somebody with a little bit more of a removed approach to the particular case and a little bit more focused on the legal principles underlying. I think it's also valuable from a perspective of our offices are handling and our office has 13,000 to 20,000 active cases at any given moment. We have a lot of issues that are being litigated by different folks in different divisions. There's some value, I think, in having a central repository where we get insights into what legal issues are being raised, so that we can provide some forms of consistency across the position that the state is taking in its vast litigation.
Jeff Johnson:
I think that makes a lot of sense. Certainly, making sure that the state doesn't say one thing in one case and saying something completely different with similar facts. Certainly, could cause a problem for both the state and its citizens. Can you guys describe what the day-to-day responsibilities you typically have outside of being in a court for your respective states?
Scott Stewart:
Sure. I put it in three buckets. I mean, the first is drafting and revising briefs, either from scratch or from other divisions, from colleagues within my own division. That's bucket one. Bucket two is preparing for arguments. Arguments themselves, especially appellate ones, of course, tend to be short, but the preparation is not. There's just a lot that goes into preparing for any appellate argument, because they are so important. Then the last bucket, at least for me, is what I'll broadly call strategy and advice. That falls in a lot of areas, just strategy about possible litigation, strategy about getting ready for appeal, strategy about different things that the office wants to do on a more policy level.
For us, at least in Mississippi, it's those three buckets and it just moves around depending. This year, for example, I'm about to present my fourth oral argument of the year. It's been a very oral argument prep-heavy year. But that just is somewhat malleable, different, flexible, depending on what the needs of the state and the office are, which is, of course, one of the things that's exciting about it.
Matt Rice:
Yeah. The only thing I'll add to what Scott laid out there was our office is also in charge of Attorney General opinions. That's another miscellaneous item that we're responsible for. I'd also say that a lot of the advice bucket, I think we spend a lot of time dealing with multi-state litigation, multi-state amicus briefs, and providing advice to our attorney generals as to, is this a brief that Tennessee has an interest in joining? Is this a case that we have an interest in joining? I think that is also a major role that takes up, frankly, more time than I'd like, because there are a lot of those briefs going around.
I am still struggling between the three buckets, which I think are a good way to conceptualize our role. I oftentimes feel like you can get caught up in one of those buckets, whether it's editing other people's work from within your office, or whether it's providing advice. I feel constantly eating into the time that I have to work on my own cases. It's been a constant struggle for me to figure out how best to allocate my time and what is the best allocation that is best for the office.
Jeff Johnson:
Matt, if I can drill down a little bit on the opinions portion of your job, I know that you're not unique in the sense that some of the other Attorney General's offices, their state solicitor generals, also have input and help craft opinions that legislators, or other people's request. Our question for you is, what are the parameters of who can request opinions and how long does that happen for your office?
Matt Rice:
Yeah. For us, it has to be state officials in their official capacity. It can't just be a state official who's curious about an issue and has to be part of their – We only provide opinions to help them, I guess, further their duties as a state official. That leads to some broader requests because, as you can imagine, state legislators, they can draft legislation about pretty much anything. There's not much limit on what legislators can ask. We will not answer requests that are submitted at the behest of private individuals. It has to be for state purposes.
About 10 years ago, our office was putting out almost 200 AG opinions a year. My predecessor got that number down in her last year to 11. We're trying to look for an in-between. It's a lot of work, and I think that the AG opinion process to me highlights the importance of having a case or controversy, because I can't tell you how many times that we have drafted one of these opinions where we have an abstract question that is presented to us, and then later regret either a certain sentence or a certain framing, because it wasn't in the context of an actual dispute, it's very easy to provide loose language in those that we later regret.
Jeff Johnson:
That's understandable. The last question for you on this is what kind of a way do state courts in Tennessee give the attorney general opinions if they're on closely related, or on topic legal questions?
Matt Rice:
There's case law saying that they are persuasives to the extent – I think to the extent, they're persuaded by the AG opinion, it can help us. I'll say though that because of the things that I just mentioned about how a lot of these opinions are not asked in the context of a case, or controversy, it's typically if you're saying something that is, if it's not directly the opposite of what you said in the opinion, I usually don't think we get too hard of a time, because they realize we're trying to do our best with a limited scenario and provide advice outside of the context of a factual scenario.
Jeff Johnson:
You guys have these three different buckets and sometimes extra special projects come in that you guys lend your hand and advice to. What's the best part of your job?
Scott Stewart:
Getting to solve problems for the benefit of the public in the state. I mean, it's one of the biggest draws to a public service job like this. I mean, I had a very positive experience in private practice and you can do a lot of good in private practice. But in public service, you're just consistently doing stuff to fight for the public, promote the public interest, that you just can't do in private disputes as consistently and to the same extent. There seems to be particularly significant gratitude, certainly, in Mississippi in my experience for how much people appreciate the work the office is doing and that's quite rare, or special.
Matt Rice:
Yeah, I'll echo that. I mean, I think a lot of my cases since I've been here have frankly been challenges to state laws that are designed to protect children. I have two young children myself. It has been personally very gratifying to have the opportunity to work on these laws, often bipartisan laws that are drafted to try to protect kids and impose certain age verification requirements and whatnot, and to get a victory on those cases and really feel like you're making a difference on that front. It's a good feeling.
Jeff Johnson:
You guys are both very competent attorneys with a – you both clerked for great judges on the Ninth Circuit for, I guess, the best originalist on the US Supreme Court right now, Justice Thomas. What drew you guys to enter, either to return to private practice, in Scott's case, or to enter private practice for you, Matt?
Scott Stewart:
Let's see. I finished clerking in 2016 and I've had public service jobs since then. Before that, I'd been in private practice at firms, clerked, as you mentioned, Jeff. It's been quite a stretch in public service. I guess, part of the draw, at least to Mississippi specifically, in my case, I'm not from Mississippi. When I got out of law school, I mostly lived or worked in Washington, D.C., or in Northern Virginia, but I'd always been drawn to the work of state solicitor general, state attorney general shops. They seemed to be doing great work, really important work, and it seemed like a really interesting place to practice law.
When I was closing up, I was in the first Trump administration. I served at the Department of Justice for all four years in D.C., at Main Justice, and I was looking for opportunities, and just the Mississippi job happened to open up. It was a very new position at that time. My boss, Attorney General Fitch, created the solicitor general position, and I liked the idea of going down to a state that seemed like a really wonderful state to build out and help form what I hope would be a high contributing, very helpful part of the Attorney General's office. At least for me, in the most current job I've had for, I guess it's now just hit four years, that was the big draw, being able to contribute to a great state and a great office.
Matt Rice:
I would echo what Scott said. I mean, I think there's no better place in the country to go and have the opportunity to litigate cutting-edge issues, meaningful issues, and to take a real role. I enjoyed private practice. I had some great mentors in private practice and wouldn't trade that time and learned a lot from a lot of people there. I haven't had as much fun practicing law other than potentially clerking for Justice Thomas. Other than that experience, I think this has been, by far, the most enjoyment that I've gotten out of practicing, not only because of the meaningful work that we get to do, the opportunities that we get. I'm from Tennessee. This was an opportunity for us to come home and to serve my home state and hopefully, help contribute to continuing to be a great place to live like it was when I grew up here.
Jeff Johnson:
Then Matt, we have to ask, is it better arguing in front of the U.S. Supreme Court, or playing for the New York Yankees?
Matt Rice:
I think it was a tremendous experience to get to argue, and that was a tremendous opportunity for me. I'm very grateful that General Skrmetti trusted me to handle the case. We obviously had an incredible team working on the case from the trial level, all the way up. I didn't actually get involved until the Supreme Court proceedings. But luckily, we had a great team and my friend, Whitney Hermandorfer, was there with me every step of the way, poring over every sentence of the brief and trying to work up responses to questions.
I also benefited from the counsel of others, like Scott, who had his own high-profile case at the court a few years ago, and I benefited from his guidance and mentorship about what to expect, how to prepare, how to handle the media attention, because I think it's very different to have clerked at the court, and then to have to be the one who stands up and argues. It's a different spot to be in. I benefited from that guidance and mentorship.
Jeff Johnson:
Speaking of big, important issues, it seems like the federal government is grabbing all the headlines these days and making all the news. Do you guys have any recent developments, or highlights that you want to share coming out of, say, the Tennessee Attorney General's Office?
Matt Rice:
Yes. We've had a lot of, towards the end of the Biden administration, there were a lot of new rules and regulations that were promulgated, that Tennessee partnering with other states like Mississippi play the hand in challenging. I think that probably the most visible one was the Title IX litigation that we were involved in, and we got that modification and attempted rewrite of Title IX vacated, and we're still fighting with over intervention and whatnot. The federal government has decided not to defend that regulation. I think there's been a transition, obviously, with the new administration. There's been some, I don't know if it's wind down, or adjustment period, where we were on the aggression, and now we're figuring out where our cases stand with the change in administration and how those cases are going to proceed forward.
Jeff Johnson:
Scott, what new items have come across in the Mississippi Attorney General's Office, or enforcing priorities that the office has announced?
Scott Stewart:
I mean, a big lawsuit filed earlier this year was a challenge to the end of the last administration. Oil drilling ban, that's a big deal, of course, to Gulf states and to just the country at large. Matt covered a lot of the interesting transitional period. I was actually at DOJ during a transitional period, so I'm looking and appreciating what many of my friends are now going for as they try to both figure out the job, figure out what they inherited, figure out how exactly to do everything, all as their different important jobs are being filled in the office. Bringing to a good close a lot of the high-priority items from the last administration will, of course, be important.
I think we're still seeing some of the opportunities we may have on just the regulatory front. We know just administrative law matters will continue to be so central, just given the reality of that's where most of the action is these days. I mean, it seems like it's really been a while since we've had big comprehensive federal legislation. You think back to AEDPA in the 90s, or the Affordable Care Act is, I guess, we're now over a decade, beyond that. Dodd-Frank, some of these things. A lot of the, what's happened in the last couple of administrations are executive orders, rule makings, different agency actions of – and we're already seeing, I think, quite quickly that that's where a lot of the action is and the dust is still far from settled.
We're getting involved as much as we can. We're not having to file suits, of course, at the rate we previously did. The multi-state efforts that Matt mentioned earlier on the amicus front, continuing with our own cases and trying to land those are all continuing priorities.
Jeff Johnson:
Excellent. Speaking of the shrinking federal Leviathan at the moment, in recent years, the courts have been more agreeable to enforcing limits as to what federal agencies can do. As Scott said, it's where all the action is at the moment, is in the administrative law context. I think it's fair to say that with West Virginia versus EPA, that solidified the major questions doctrine, Biden v. Nebraska, expanding on major questions, and Loper Bright, ending Chevron deference to administrative agencies. That the law is presenting a clear signal that federal agencies have to be more careful in how they exercise that power. I know that your states were involved in, I think, every one of those cases, if I'm not mistaken.
I guess the question is, what do you think that federal courts now have to grapple with about how these doctrines interact going forward? Where do you think these interesting questions are going to be presented best?
Matt Rice:
I think all of the stuff is very interrelated, the changes that we're seeing in the administrative law space. You mentioned the major questions doctrine, and I think that touches on a few issues that are hot button administrative law issues right now, which is one, the demise of Chevron and two, the non-delegation doctrine. I think major questions is at the intersection of those doctrines. I think it's stemmed, ultimately, at least in a more robust form, from a prior lack of enforcement with respect to non-delegation and from the Chevron doctrine. I mean, I think part of the fiction of Chevron was that if you had statutory silence, that you could assume that that was an implicit delegation of authority for the agency to take certain action.
The major questions doctrine was an impediment to that. In this subset of cases, we're not going to assume that Congress has given you this authority. Now, post-Chevron, I think it's more of a statutory interpretation principle, and particularly if we get a more robust non-delegation doctrine, which, as we've alluded to, there's a non-delegation case that has been granted at the Supreme Court for the next term. I think that major questions will ultimately recede and become more of a statutory interpretation principle and maybe not be as much at the forefront moving forward, if we get a more robust non-delegation doctrine in the next term and with the post-Loper Bright world in which we're not taking statutory silence to be an implicit delegation of authority. I'm interested to hear any reactions from Scott on that.
Jeff Johnson:
Right. Just real quick to keep it right, the case that was granted at the Supreme Court of the United States is this Consumers’ Research versus the FCC, and that's about the universal service fee, if I'm not right, if I'm not mistaken, where the Fifth Circuit held that the statute actually didn't have any textual grant of authority to the FCC to impose the fee.
Scott Stewart:
That's a good lead-in. I thought Matt made very good points, and I think he's right, that these points, doctrines, rules, principles, they all lead-in. They interact. I mean, I guess, something that I think about quite a bit, and this is something that's interesting in the Consumers' Research case, is with all this litigation lately, all this going on at the federal level, I think we're shining a light a little bit on how government works, perhaps for better or for worse. I mean, the Consumers’ Research thing is, I think the parties do suggest that it is a somewhat unique setup, but it's one of these things where it has an agency, has a power that the argument is it's a taxing power, very much like a taxing power, which is a very potent power.
Then you have another situation with a delegation, or a sub-delegation to a private entity. At the very least is bringing to the forefront, hey, this is how things are working. How do we as a country feel about that? I mean, should things be stuck back with Congress, or what? I guess, the way I look at it is, it reminds me of a lot of themes that you see in some of the 10th Amendment cases in the 90s, the 2000s, some of the federalism cases from around that time where a big theme seemed to be political accountability, making sure that whoever – the people who were responsible for making these decisions could be identified as responsible and could be held accountable for those things. To me, those seem to be big themes in some of those cases back then.
I think, shedding a light on who is making these decisions. Is this something Congress really did? Is this something that belongs to the agency? Because you can appreciate that there's something very attractive about handing off authority, or suggesting that someone else has authority, and then if things go badly, you can just say, “Hey, that's not me. It's them.” If things go well, you say, “Oh, look. That actually is me, because I helped pass this law.” I guess, I see a strong accountability theme. I see that running through Chevron. I see that running through the major questions cases, non-delegation. That seems to be a pretty critical point.
If nothing else, I think it's helping this conversation about people understanding like, oh, we have this humongous government. What is this part doing? What is this part doing? Why is that line item on my telephone bill each month? Who's responsible for that? I mean, it's just good that people know.
Jeff Johnson:
Right. I think one of the things that seems to be animating all of these cases, I think you're also including Loper Bright, is the lack of clear statements by Congress, and perhaps, questionable agency action that's going on. I think the things that at least the courts have been grappling with is like, are these things, is silence really authority for the agency to fill in the blanks for what Congress wanted them to do? Or is it really just that Congress didn't think about it at all?
Matt Rice:
I think we're going to see. I'm interested to see how this Consumers' Research case plays out, because I do think there is a – and Scott and I have talked about this offline. There's a fundamental administrability problem with the non-delegation doctrine. I think the reason the doctrine has not been vigorously applied is because it's not the easiest place to draw a line as to when exactly are they just filling in details and when are they themselves exercising the legislative power?
I do expect that we will have a more robust non-delegation doctrine moving forward, but how the Court articulates that and how much guidance that it gives to lower courts about how to police that line between filling in the details and exercising legislative power is going to be interesting to see how that plays out.
Jeff Johnson:
Do we think that the major questions doctrine is more of a substitute canon of interpretation, that when we look at the statute and the agency says, “Oh, a system for emissions means this 500-page program that everyone has to do,” or is it more of a hard line, separation of powers, the executive shouldn't be going further than what Congress has set?
Scott Stewart:
This may bring in Justice Barrett's very thoughtful, separate opinion in the Nebraska versus Biden case, where she lays out, addresses this issue. I think she does very well to pinpoint, certainly, the intuition that about the realities of how people use language and what their expectations would be. I think she uses some very nice examples about, when you leave your kids with a babysitter and say, have a good time, the implication of how good, or an elaborative time you're suggesting. A full-blown multi-night trip to Disneyland, versus a pizza and dinner kind of a thing. You're like, that's a really nice way to capture some things.
I won't say that I have a completely settled view as to which bucket it falls in. I do think that there's something to be said about strong clarity when an agency does want to take some big action in West Virginia versus EPA is I think a very good example. I mean, nobody was suggesting that that was a small issue there in the court. Seemed to recognize that. I do think Alabama Association of Realtors, if I've got the case name right, I mean, is I thought quite a good example of authorizing the CDC to address the spreading of disease. Does that cover regulation of landlord and tenant relationships? Seems a little difficult to make that leap according to the court. That just seems intuitive to me, but I suppose that's all to say that maybe the devil's in the details about just the application in a particular case, how clear is clear enough and that sort of thing.
Matt Rice:
The real debate right now seems to be whether it's a substantive canon, or rather, it's just a doctrine that is consistent with the notion that we take into account context whenever we're interpreting statutes. The delta between those two disputing conceptions of the major questions doctrine is, I think, the clear statement rule. Whereas, if you view this just as a part of statute for interpretation, then you're still looking for the best interpretation of the statute. What Justice Barrett lays out in her separate opinion is if we're treating this as a substantive canon and we're saying there has to be a clear statement rule, the courts could perhaps choose a reading of the statute that is not the best reading, but there's no clear statement. I think that that is the delta between the two conceptions of the doctrine. I wonder how much work that delta is actually doing.
We have clear statement rules in a lot of areas of the law. I think clear statement rules are enforced, perhaps, with some vigor in the context of sovereign immunity. For example, what the federalism canon purports to have a clear statement rule associated with it. Despite me raising that argument over and over again, no one has ever said, we're going to interpret this according to the federalism canon, there's a lack of a clear statement. I actually wonder, I think it's very interesting and academic, the distinction between a substantive canon and whether it's just part of the statutory interpretation process. But I don't know practically that it's going to change the outcome in a lot of cases, depending on where you slot it.
Scott Stewart:
That's well put, if I could just add one thing. I mean, one observation is at least as I read the major questions cases, if you look at, say, the major questions cases in some of the constitutional avoidance cases, to me, the major questions cases are quite natural readings of the statutes when you look at the big ones. I think more people would say, or acknowledge that the constitutional avoidance cases, the court is perhaps doing a bit more work to avoid a constitutional problem, which goes back to Matt's delta question. I think the delta between, say, what the statute most naturally reads and where the court has to maybe end up to avoid a big constitutional question or problem is maybe bigger in the avoidance cases, so I see a distinction there.
Jeff Johnson:
Just from a theoretical perspective, do we think that if the non-delegation doctrine is more invigorated, do we think there's going to be more major questions, or do we think that the lines of argument are going to shift more toward should the agency be doing this to begin with?
Matt Rice:
I tend to think that you'll probably continue to have assertions of both. I think that the notion that the major questions doctrine is rooted in separation of powers and is carrying more of the constitutional avoidance work could be diminished if we have a reinvigorated non-delegation doctrine. I think you could see the major questions doctrine moving more towards Justice Barrett's conception, if it's not having to do the work of what is effectively an unenforced non-delegation doctrine right now.
Jeff Johnson:
Right, because the last time that the Supreme Court's actually held a statute unconstitutional for the non-delegation with Schechter in the 40s, right?
Matt Rice:
Yes, it's been a while.
Jeff Johnson:
We've developed various tools to try and get the statutory meaning in the meantime, perhaps. Excellent. Well, I appreciate you guys coming on and having this great conversation. It's been a pleasure. We wish you the best as you go forward with your states. Let's do this again sometime.
Scott Stewart:
Absolutely. Thank you, Jeff. Thank you, Matt. This was a real joy.
Matt Rice:
Thank you both. This was a lot of fun.
Stephen Piepgrass:
Scott, Matt, and Jeff, thanks for joining me today. This has been a very interesting conversation, and I'm sure our listeners enjoyed your insights. Thank you to our audience members for tuning in. Remember to subscribe to this podcast on whatever platform you choose, and we look forward to having you join us next time.
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