Did Justice Breyer Reveal How the Supreme Court Will Decide a Pending Case?

A comment made by Justice Breyer at oral argument seems to indicate how the Court will decide Cameron v. EMW Women’s Surgical Center.

Today the Supreme Court heard oral argument in Arizona v. San Francisco, which in which the Court will decide whether states with interests should be permitted to intervene to defend a regulation (in this case, the so-called "Public Charge" rule) when the United States ceases to defend it, pending the development of a new regulation reflecting the current Administration's views.

During oral argument, Justice Stephen Breyer seemed to disclose how the Court will decide another case, Cameron v. EMW Women's Surgical Center, which was argued in October. Cameron presents the related question whether a state attorney general who is vested with the power to defend state law should be permitted to intervene to defend a state law after a federal court of appeals invalidated that statute and no other state actor will defend the law.

Here is the relevant portion of Justice Breyer's questioning of Principal Deputy Solicitor General Brian Fletcher from the oral argument transcript (flagged by Lawrence Hurley of Reuters):

JUSTICE BREYER: . . . what about their argument, which is, look, one—you say only five people were affected, but you added change of status applicants. So what they think is there may be millions of people, just across different borders, who will be here, you see, if—a question of food stamps, and so all those people, we don't know, the record doesn't tell us whether they're in Arizona or not. And they say it's a billion dollars, and you say it's five people, and so forth.

Okay. That's one thing. But then they say we have a totally different ground. Our ground for intervening is simply this: The decision of the courts about the merits of the old rule is completely wrong. And if you allow this to stand, this totally wrong decision, courts of the United States, what the government will do is just acquiesce.

And that way they avoid notice-and-comment rulemaking. And that should be a ground for our being able to intervene to ask for rehearing en banc or maybe ask the Supreme Court.

Pretty similar to what we just allowed in that case of the attorney general. You know, it was a different party. What was it, Kentucky or—we just—and pretty similar. See? They won't defend it, but we'll defend it because it's totally wrong.

And we—you see what we gain? Now, to me, that is a law professor's issue. My God, I don't know what the answer is. And we don't have to get into any of this mess if we can only get the Illinois case here in front of us. That's why I keep asking, what should we do?

The Supreme Court is scheduled to release opinions tomorrow. Perhaps Cameron is among them.

Comments

[ReaderY]

I don’t see how one case should determine the otehr. It seems to me a state always has a sovereign interest in enforcing its laws, so if a cade between private parties results in a state law being challenged, I think the attorney general has standing and ought to be able to intervene as of right.

But whether a state gets to intervene in a dispute in another state that merely implicates state imterests as distinct from directly challenging the state’s own law is a different question. There, a state has no automatic interest. It has to show its interest in the case and prove standing in the usual way. Otherwise, it can file an amicus curiae brief like everyone else.

[John F. Carr]

Some states have laws requiring notice to be served on the Attorney General if the constitutionality of a state law or regulation is being challenged.

[Brett Bellmore]

“the related question whether a state attorney general who is vested with the power to defend state law should be permitted to intervene to defend a state law after a federal court of appeals invalidated that statute and no other state actor will defend the law.”

It floors me that this is even an open question. Doesn’t the “vested with the power to defend state law” settle the matter conclusively?

[CJColucci]

Normally, an AG acts on behalf of some state client. Whether the AG can act unilaterally to defend a state law that the responsible agency or officer does not wish to defend would be a question of state law. Since the Court took the case, and would not have taken it to decide a matter of state law, I assume Kentucky state law permits that.
In most states, the AG can intervene in litigation, and is entitled to notice of a suit challenging a state law in order to decide whether to intervene. Presumably, if notice was required, it was given, or this would be a dull and simple case.
The relevant question seems to be whether the AG can jump into an already-decided case. That’s not so obvious.