SCOTUS Allows State Attorney General to Intervene when Governor Stops Defending State Law

Today, the Supreme Court ruled Cameron v. EMW Women’s Surgical CenterThe Court was asked whether Kentucky Attorney-General David Cameron, who had refused to intervene during litigation to support a state abortion statute, could do so. Justice Breyer’s suggestion last week was accepted by the Court, which affirmed that Cameron can intervene.

Justice Alito was joined by Chief Justice Thomas and Justices Gorsuch and Kavanaugh to write for the Court. Justice Thomas also wrote an opinion concurring in the judgment. Justice Kagan and Justice Breyer also wrote an opinion concurring with the judgment. Justice Sotomayor was the only dissident.

Here’s how Justice Alito starts his opinion for Court.

The case involves a request by a Kentucky attorney general to participate in an appellate proceeding to defend the constitutionality of state laws. This issue arose following a Sixth Circuit United States Court of Appeals decision declaring a Kentucky statute invalid. Although the Kentucky lawmaker had decided to not seek further review of the decision, the Kentucky attorney general moved to join the case. We granted review, though the panel rejected that motion.

Justice Alito explained why the Court denied the motion of AG Cameron and why it was incorrect for the Sixth Circuit to reject it. Justice Alito wrote, among other things:

A motion for permissive interference is resolved at the discretion of that court. Automobile Workers, 382 U. S., at 217, n. 10; Fed. Rule Civ. Proc. 24(b)(1)(a). However, a court can’t exercise its discretion properly if it “base[s]Its ruling on an incorrect view of law” Cooter & Gell v. Hartmarx
Corp496 U. S. 384 (1990), which is the same as what happened in this case. Sixth Circuit failed to recognize the strong interest of Kentucky attorney general in taking up defense for HB454 when secretary for Health and Family Services acquiesced.

Justice Kagan came to the same conclusions as Justice Alito but took a different path. These are extracts of the closing and opening paragraphs of her opinion.

The Court is correct in stating that the Sixth Circuit should allow the attorney general to enter into this case after another official from Kentucky stopped defending the Kentucky law. I share some of the Court’s reasons. However, I think it would be a different way to frame the critical threshold question that EMW has raised. To resolve our intervention question, I don’t see the need for us to use “constitutional considerations”. . . .

Although I have traveled a different road, I still arrive at the Court. My view is that the motion of the attorney general to intervene wasn’t an attempt to circumvent the timely appeal rule. With that out of the way this case can be considered a classic case for intervention. It would have been appropriate for the Sixth Circuit to allow the attorney general into the case to defend the law being challenged.

Interestingly enough though many academics claimed black letter law was supportive of the Sixth Circuit’s opinion below denying AG Camerons request to intervene, there is only one justice who supported that view. The Court of Appeals for the Sixth Circuit could not reverse this decision. However, those who said that the Court had to apply a specific exception for abortion-related cases might be wrong. That assessment cannot account Justice Kagan’s or Justice Breyer votes, even if it was thought to have explained them.

Justice Sotomayor’s sole dissent is as follows

Each case should have an “end date” for litigation. Browder v. Director, Dept. Browder v. Director, Dept.., 434 U. S. 257, 257 (1978). (Internal quotation marks removed). In order to achieve that goal, the legal system forces parties to adhere all representations made during a lawsuit. The attorney general for Kentucky agreed to be dismissed as a defendant in this District Court case and to allow another person to represent Kentucky’s interests. After the District Court’s decision was upheld by the Court of Appeals, the attorney general requested permission from the Court of Appeals that he return on the basis of a position he had renounced when securing his dismissal in earlier litigation. His request for intervention was denied by the Court of Appeals.

It is generally decided that intervention can be granted in any case at the “sound discretion” the court seeking intervention. That court has the most ability to determine potential inefficiencies or unfairness. NAACP v. New York, 413 U. S. 345, 366 (1973). The Court acknowledges that highly deferential standard, but nonetheless bends over backward to accommodate the attorney general’s  reentry into the case. The Court’s today’s decision could open up the possibility for officials of government to dodge the consequences of lawsuit decisions made by different political parties. It will undermine finality and upset the established expectations of litigants, courts and the general public. Respectfully, I disapprove.