Courts can ignore the Solicitor General---all that matters is consultation.

The solicitor general is considered the No. 2 member of the Justice Department, serving right under the attorney general. The person filling that role argues the federal government’s case before the Supreme Court.

The defendant in the case is Robert Bonta, the state’s attorney general who took over from the original defendant, Xavier Becerra. Becerra is now secretary of Health and Human Services.

The attorneys representing trucking-focused trade groups that filed friend of the court briefs told FreightWaves they were pleased with the court’s request for input from the solicitor general. Their focus is not necessarily on the fact that AB5 remains on the sidelines in California trucking. More importantly, the request by the court, along with other steps it has taken, shows it has taken an interest in the key question in the CTA case: state preemption of federal transportation laws, they said.

The argument the CTA made when it obtained the injunction at the start of 2020 that kept AB5 on the bench in truck transportation is that such state action was preempted by the Federal Aviation Administration Authorization Act, passed in 1994 and known as F4A. F4A specifically bars any state action that would impact a motor carrier’s “prices, routes and services.” CTA argued before the federal district court that AB5 would have that impact; the court agreed.

But a three-judge appellate panel of the 9th Circuit disagreed in a decision handed down in April. In June, a CTA request for an en banc hearing panel’s ruling was denied, leaving the Supreme Court as the organization’s only hope.

Less than 2% of requests for certiorari — or review — are accepted by the Supreme Court. But the court appears to be focused on the question of F4A preemption, separately requesting solicitor general input in two other cases where preemption is an issue.

One of those cases is Miller v. C.H. Robinson. At issue there is whether a brokerage company can be held negligent for acts of the motor carrier. That is on appeal to the Supreme Court by the plaintiff, with lower court rulings favoring the C.H. Robinson (NASDAQ: CHRW) argument that it is not liable under F4A.

Marc S. Blubaugh, who represented the Transportation Intermediaries Association in its friend of the court brief in the CTA case, said the Supreme Court Monday also asked for the solicitor general to issue an opinion in a case involving Virgin Airlines. The legal question in that case involves an F4A type of issue, though it deals with a parallel law, the Airline Deregulation Act.

Put that all together, and Blubaugh said, “this probably indicates that, at the very least, the case has the court’s attention.”

“We’re certainly glad to see this development,” Richard Pianka, an attorney for the American Trucking Associations, said of the request by the Supreme Court for solicitor general input. “We see this development as an indication that the Supreme Court sees a real issue here (on the F4A question) and it’s not surprising they are asking the federal government to weigh in.”

Prelogar and her team at the solicitor general’s office will issue an opinion that the court is free to ignore. But the speed at which she and that group respond is important because every day that the solicitor general opinion is being formulated does two things.