The Women, Law, and Policy Program hosted Michelle Kallen ‘10 for a conversation about public and private practice, appellate advocacy, and building a career as a woman in law.
Kallen is a partner and co-chair of the Appeals and Advocacy practice at Steptoe LLP in Washington, D.C. She served as the seventh Solicitor General of Virginia—the first woman to hold the role—and also served as Deputy Solicitor General of Virginia and Special Litigation Counsel in the Office of General Counsel for the U.S. House of Representatives.
Moderated by Jennifer Bennett Shinall, Associate Dean for Research and the Sara J. Finley Chair in Women, Law & Policy, the conversation highlighted Kallen’s work on the Equal Rights Amendment, COVID-related executive power, January 6 litigation, and the ongoing barriers women face in legal practice.
Path to Public Service
Kallen began her career in Big Law. She prioritized joining a firm with a strong litigation practice, exposure to the business side of law, and ample opportunities for pro bono work. Kallen said she found that combination at Simpson Thacher and later at Paul Weiss, where uncapped billable pro bono hours gave her early experience in appellate briefing, proved valuable when she moved into government practice.
Kallen transitioned into public service in 2018, when Virginia’s newly appointed Solicitor General, Toby Heytens, began hiring deputies. Kallen successfully waived into the Virginia bar and accepted the role of Deputy Solicitor General. After three years, Kallen assumed the role of Solicitor General when Heytens was appointed to the U.S. Court of Appeals for the Fourth Circuit.
Her early tenure consisted mainly of appellate work, which changed quickly when control of the state government flipped and the COVID-19 pandemic hit, placing the Attorney General’s office at the center of Virginia’s emergency legal response. Kallen described drafting executive orders on short notice, defending the governor’s emergency powers, and appearing in court—often within days—against sweeping attempts to prohibit pandemic-related restrictions.
“We had to help manage the COVID strategy, understand the scope of executive power when it comes to COVID, defend the inevitable litigation, and adjust to working from home ourselves,” Kallen said. “And personally, I had a newborn at home at the time, so I was handling that as well.”
Constitutional Advocacy and the Equal Rights Amendment
Around the same time, Kallen worked on one of the most prominent cases of her career: litigation surrounding Virginia’s ratification of the Equal Rights Amendment (ERA). Kallen described it as an excitingly rare opportunity to brief and argue fundamental questions about constitutional structure.
When Virginia became the 38th state to ratify the ERA, Kallen’s office took the position that the amendment effectively became part of the Constitution. However, they anticipated that the federal Archivist, the official responsible for formally certifying and publishing new amendments, might refuse to do so, because the ratification deadline had expired. Virginia, Illinois, and Nevada therefore prepared a mandamus action asking the court to order the Archivist to publish the ERA. The district court ultimately rejected the suit on standing and mandamus grounds, avoiding any ruling on whether the ERA had become the 28th Amendment.
“Under our theory of Article V, the ERA became the 28th Amendment to the Constitution the moment Virginia ratified,” Kallen said. “The litigation actually never resolved that question. So as a technical legal matter, the ERA is still in legal limbo.”
Kallen emphasized the significance of ratifying the amendment and making explicit textual equality protections. While current doctrine interprets the 14th Amendment to prohibit sex discrimination, she noted that this was not the understanding at the time of ratification. Under a strict originalist approach, that modern doctrine could be vulnerable. Given recent shifts in the Supreme Court’s approach to precedent, she said, “it’s unclear whether or not this jurisprudence is, in fact, really safe.”
She argued that the district court incorrectly concluded that the states had no injury from the Archivist’s refusal to certify the amendment.
“We really felt strongly that the district court was wrong in their creative legal theory about standing, because ceremonial injury itself is an injury,” Kallen explained. “Even if the ERA is just symbolic, when the United States goes out to other countries and helps them draft their constitutions, we insist on having equal rights language directly in their constitutions. So as a symbolic matter, it should be important to us to have that language expressed in the text of our Constitution.”
Defending the House in January 6th Litigation
Kallen’s time as Solicitor General ended after Democratic Attorney General Mark Herring lost reelection in 2021, bringing a change in administration. She noted that this is an inevitable reality for lawyers in election-dependent roles.
Kallen went on to join the Office of General Counsel for the U.S. House of Representatives to represent the House Select Committee to Investigate the January 6 Attack on the United States Capitol. In her first week, she helped draft the Committee’s briefing for Eastman v. Thompson, the dispute involving John Eastman, a lawyer who advised President Donald Trump on strategies to challenge the 2020 election results. Eastman sought to block the Committee from accessing his emails stored on Chapman University’s servers, arguing that the communications were protected by attorney-client privilege.
Kallen and the Committee argued that the crime-fraud exception to attorney-client privilege applied, meaning privilege could not shield communications made to advance potential unlawful conduct related to overturning the election. Kallen said this case required navigating questions of executive privilege, separation of powers, and congressional investigative authority.
The opportunity to work toward Congress’s institutional efforts to defend democratic processes was a meaningful way to end her tenure in government service, she expressed.
Returning to Private Practice and Navigating Gender Disparities
Despite a high-profile appellate record that included multiple U.S. Supreme Court matters and constitutional litigation, Kallen faced what she described as an unusually tight market for senior appellate partner positions as she transitioned back into Big Law. “The economics of law firms have changed significantly,” she noted.
“One of the things that I think has been interesting, especially becoming more senior in my career, is that I thought that there was kind of a trajectory,” she said, “and once you’ve done certain things professionally, then other things would fall into place. And it seems like that just never happens.”
This reality is especially stark for women, Kallen noted. She and Professor Shinall highlighted that even though women have made up roughly half of law school classes for decades, partnership rates remain disproportionately low. Kallen described her experiences of repeatedly being mistaken for a paralegal, clerk, or student when appearing in court, including while serving as Solicitor General. She recalled facing disrespectful treatment even from law enforcement officials.
“I’d be sitting where counsel sits, and I’d be talking to one of my deputies to prep for an argument,” Kallen recalled, “and I’d get shushed by the marshals because they thought that I was a clerk or someone like that. Then, when I’d get up to argue, I’d see their faces turn white, because they didn’t treat the people that they thought were arguing cases like that.”
Professor Shinall added, “That is true across professional disciplines. Even in medicine now, many medical school classes are majority female, and in business school as well, and there is still not much female leadership at the top.”
Kallen also highlighted the importance of legal and office culture shaped by women professionals. When she joined the Virginia Solicitor General’s Office, she was the only woman on the team, she said. By the time she left, the office consisted entirely of women. Now back in private practice, Kallen said she sees genuine progress in firms where women hold leadership positions, including her own firm with a female chair.
She emphasized that balancing an elite litigation career with motherhood has added another layer of complexity. Having a supportive partner has been invaluable, and she stressed that parenting has sharpened her resilience and focus in legal practice.
Kallen closed by encouraging students to embrace uncertainty in their careers and remain open to opportunities that don’t follow a linear path. Meaningful legal work often emerges from willingness to take on unfamiliar roles, she expressed. She urged future lawyers to cultivate perspective from community involvement and pursue work that reflects both professional rigor and a genuine commitment to public service.