Today’s Ad Law Reading Room entry is “Not-So-Special Solicitude,” by Katherine Mims Crocker. Here is the abstract:

In a high-profile case last term about state standing to sue in federal court, Justice Gorsuch deemed it “hard not to wonder why” the majority said “nothing about ‘special solicitude.’” The silence was indeed surprising, for in a landmark decision several years earlier, the Supreme Court had declared that states were “entitled to special solicitude”—presumably meaning some sort of preferential treatment—“in [the] standing analysis.” And since then, commentators had depicted the concept as permitting opportunistic states to wage ideological crusades in courts across the country, especially through administrative-law attacks on federal-government defendants.

But what if “special solicitude” is not so special after all? With a deep dive into appellate caselaw, this Article argues just that. After discussing how special solicitude has faded from explicit prominence in Supreme Court precedent, the Article analyzes the Court’s state-standing decisions to determine whether the concept has exerted implicit influence. To the contrary, the Court has narrowed multiple aspects of justiciability law that state-standing skeptics have long criticized as faulty for the nation’s federalist structure, including in two key cases from June 2023. The Article then catalogues each and every state-standing case from the federal courts of appeals to discuss special solicitude. This examination finds no consensus about what the concept means—but again concludes that it lacks doctrinal significance. Courts often deny state standing or pronounce special solicitude extraneous to the analysis. And even where courts purport to apply it, special solicitude seems not to have made a definitive and dispositive difference in a single case.

At the very least, this Article argues, special solicitude plays a much smaller part in federal-courts cases than conventional wisdom assumes. Accordingly, scholars and other stakeholders hoping to improve this important area of constitutional law should focus far less on special solicitude and far more on other areas of potential reform.

The “special solicitude” extended to states in standing cases has been a mystery since it was first introduced in Massachusetts v. EPA. What does it mean for states to get such solicitude, and why should they? The virtue of Crocker’s article is in moving past such questions to ask a more practical one: What difference has special solicitude made in cases where it’s been featured? Crocker’s exhaustive survey suggests that the answer to that question is, well, not much. That’s good to know for the sake of knowing. But it helps reorient our thinking in other ways as well. In particular, and as Crocker discusses, if one is troubled by the uptick in litigation by the states against the federal government, focusing on abolishing special solicitude may be the wrong place to start.

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.