Garg: The Creation of a Solicitor General’s Office Has Served New Jersey Well

OPINION

As the eyes of the nation turn towards the U.S. Supreme Court for today’s argument on birthright citizenship, they will see New Jersey once again being excellently represented by its brilliant Solicitor General, Jeremy Feigenbaum.  What many people may not realize is had this argument taken place just five years ago, New Jersey would not have been represented by a Solicitor General, because that office did not even exist.  The creation and growth of a solicitor general’s office has been and will continue to be hugely beneficial to New Jersey’s interests – regardless of the party or administration in power.  As a result, it should be considered one of the Murphy administration’s notable and underappreciated achievements.

Of course, states have been involved in appellate litigation throughout American history.  (For example, New Jersey first defeated New York at the U.S. Supreme Court in 1831, and hasn’t lost since.)  The United States has had a Solicitor General since 1870, but only a handful of states had an analogous state-level role until the late 1980s.  Since then, the number of states that have a Solicitor General has grown from 8 to 44.  The prominence of these offices has also increased drastically as state attorneys general have increasingly sought to challenge the actions of the federal government, especially when controlled by the opposite party (e.g. Republican state attorneys general during the Obama and Biden administrations, and Democratic state attorneys general during the Bush and Trump administrations).

Up until 2020, New Jersey was in the minority of states that did not have a Solicitor General.  To be sure, New Jersey’s Attorney General’s Office has always had exceptionally talented lawyers in the Division of Law that represented the state in appellate litigation.  However, a large majority of the Division of Law’s docket is in state court, meaning that is where Division of Law attorneys have the most experience.  For high-stakes federal litigations during prior administrations, such as the Christie administration’s successful litigation at the U.S. Supreme Court enabling the legalization of sports betting, outside law firms were frequently used.

During Governor Murphy’s first term, New Jersey under Attorney General Gurbir Grewal was a leader in challenging the federal government’s policies, and those efforts were frequently overseen by attorneys with experience litigating in federal court, such as Jeremy, now-Justice Rachel Wainer Apter, and Matt Berns (now deputy chief counsel to the Governor).  Attorney General Grewal and then-chief counsel Matt Platkin concluded that creating an office with specialized appellate expertise, particularly in federal court, would be beneficial, and as a result they named Jeremy as New Jersey’s first Solicitor General in July 2020.

During my four years as Governor Murphy’s chief counsel, I saw the office, under Jeremy’s leadership, grow into one of the most respected solicitor general’s offices in the country.  This has had huge benefits to the state in many ways.  Throughout the COVID-19 pandemic, the solicitor general’s office was not involved in setting public health policy, but it did help ensure that not a single one of Governor Murphy’s executive orders was ever struck down in state or federal court, despite hundreds of legal challenges.  The solicitor general’s office helped advance New Jersey’s interests against its neighboring states, such as when New Jersey defeated New York 9 to 0 at the U.S. Supreme Court in 2023 and won the right to withdraw from the outdated Waterfront Commission.  And more recently, under Attorney General Platkin, New Jersey’s solicitor general’s office has been a national leader in litigating against the Trump administration’s policies, as today’s argument demonstrates.

The solicitor general’s office not only strengthens the executive branch, but also aids the Legislature and the Judiciary.  The Legislature benefits from having strong defenses of its statutes – for example, the solicitor general’s office has ensured that New Jersey’s strong gun safety laws, which were championed by Speaker Coughlin and Senate President Scutari, have been consistently upheld in court.  And the Judiciary benefits from having strong and clear advocacy that can assist it in developing well-reasoned and practical jurisprudence.

There are other advantages too.  New Jersey’s solicitor general’s office is now able to recruit some of the finest appellate lawyers in the country, as it gives younger lawyers the ability to consistently argue appellate cases in court, which is not typically possible in the private sector.  And these lawyers are then well-positioned to be the next generation of leaders in the bar, and someday, judges and justices on our state and federal courts.

It is important to note that none of these benefits have anything to do with politics.  A Republican Governor with a conservative Attorney General would be equally well-served by a solicitor general’s office that is able to capably defend their administration’s policies and interests in court.  Regardless of who the Governor is, having outstanding appellate lawyers litigating on behalf of New Jersey is something that all of our residents should welcome.But as the chief executive whose administration created the solicitor general’s office, Governor Murphy deserves to be credited for this achievement.  It is just another example of how his farsighted leadership will benefit our state for generations to come.

Parimal Garg served as Governor Murphy’s chief counsel from October 2020 to November 2024.  He is currently a partner at Lowenstein Sandler.