Not-So-Special Solicitude

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.