A good development today on New Hampshire’s lawsuit against Massachusetts for taxing telecommuters who never enter the state. In a short order this morning, the U.S. Supreme Court requested that the Solicitor General file a brief providing the views of the United States government in the case.
This is a good sign for two reasons. First, the case has survived the Court’s first opportunity to dismiss it. A smart person once explained to me that Supreme Court procedure is about navigating your case past a series of checkpoints designed to weed out cases. Second, the Court only calls for the views of the Solicitor General (“CVSG” in court-watcher parlance) a couple dozen times a year, so it’s a sign the Court is looking closely at this case.
While the Solicitor General is a political appointee, the office has responsibilities to all three branches of government and its briefs often consider the implications of the case on other areas of law and on the separation of powers. Their positions rarely change even with a change in administrations. Solicitor General briefs on whether the Court should consider a case have accordingly proven persuasive, with the Court usually following the advice given. President Biden has yet to announce his nominee for Solicitor General, and Deputy Solicitor General Elizabeth Prelogar is serving as Acting Solicitor General. She worked in the Solicitor General’s office from 2014 to 2019 and was a law clerk to Justices Ruth Bader Ginsburg and Elena Kagan, as well as to D.C. Circuit Judge Merrick Garland.
As they normally do with Solicitor General briefs, the Court gave no deadline for the filing of the brief. No word yet on what the Solicitor General’s views might be in the case, but given that Massachusetts has found few allies in its action, hopefully the feds will see it the same way.