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Supreme Court

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

As Justice Breyer suggested last week, Kentucky Attorney General Daniel Cameron will be allowed to defend the state's controversial abortion law.


Today the Supreme Court decided Cameron v. EMW Women's Surgical Center, which concerned whether Kentucky Attorney General Daniel Cameron could intervene to defend a state abortion law after the state's Governor refused to do so during the litigation. As Justice Breyer had suggested last week, the Court concluded that Cameron could intervene, 8-1.

Justice Alito wrote for the Court, joined by the Chief Justice and Justices Thomas, Gorsuch, Kavanaugh, and Barrett. Justice Thomas wrote a separate concurring opinion. Justice Kagan wrote an opinion concurring in the judgment, joined by Justice Breyer. Justice Sotomayor was the lone dissenter.

Here is how Justice Alito begins his opinion for the Court:

This case concerns a state attorney general's attempt to intervene in a federal appellate proceeding for the purpose of defending the constitutionality of a state law. The issue arose after a panel of the United States Court of Appeals for the Sixth Circuit affirmed a decision holding a Kentucky statute unconstitutional. The Kentucky official who had been defending the law decided not to seek any further review, but the Kentucky attorney general then moved to intervene for the purpose of taking up the defense. The panel denied that motion, but we granted review.

Justice Alito went on to explain why the Court rejected the claim that AG Cameron's motion was barred and why the Sixth Circuit was wrong to deny it. Among other things, Justice Alito wrote:

Resolution of a motion for permissive intervention is committed to the discretion of the court before which intervention is sought, see Automobile Workers, 382 U. S., at 217, n. 10; Fed. Rule Civ. Proc. 24(b)(1)(a). But a court fails to exercise its discretion soundly when it "base[s] its ruling on an erroneous view of the law," Cooter & Gell v. Hartmarx Corp., 496 U. S. 384, 405 (1990), and that is what happened here. The Sixth Circuit panel failed to account for the strength of the Kentucky attorney general's interest in taking up the defense of HB 454 when the secretary for Health and Family Services elected to acquiesce.

Justice Kagan reached the same conclusion as Justice Alito, just taking a slightly different route. Here are excerpts from the opening and closing of her separate opinion:

I agree with the Court that the Sixth Circuit should have allowed the attorney general to intervene in this suit after another state official ceased defending the challenged Kentucky law. And my reasons for reaching that conclusion partly overlap with the Court's. But I would differently frame and respond to the serious threshold issue that respondent EMW raises. I also see no need to rely on "constitutional considerations" to resolve the intervention question before us. . . .

So I arrive, if via a somewhat different path, at the same endpoint as the Court. In my view, the attorney general's motion to intervene was not an end-run around the timely appeal rule. And with that issue out of the way, this is a textbook case for intervention. The Sixth Circuit should have allowed the attorney general to step into the litigation to defend the challenged law.

Interestingly enough, while many academics claimed that black letter law clearly supported the U.S. Court of Appeals for the Sixth Circuit's opinion below denying AG Cameron's attempt to intervene, it appears only one justice endorsed that view. Thus it seems those who claimed the only way the Court could reverse the Sixth Circuit was by applying some special exception for an abortion-related case, might need to reconsider, as that assessment certainly cannot explain Justice Kagan's and Justice Breyer's votes (even if one thought it did explain the votes of the others).

Justice Sotomayor's lone dissent begins as follows:

In every case, there must be a "point of time when litigation shall be at an end." Browder v. Director, Dept. of Corrections of Ill., 434 U. S. 257, 264 (1978) (internal quotation marks omitted). To effectuate that endpoint, our legal system requires parties to abide by representations made in a lawsuit regardless of later regrets. In this case, the attorney general of Kentucky stipulated to his own dismissal as a party in the District Court and agreed to have another official represent Kentucky's interests. Only years later, and after the Court of Appeals affirmed the District Court's judgment, did the attorney general ask the Court of Appeals to allow him to return based on a position he had disavowed when securing his dismissal earlier in the litigation. The Court of Appeals refused his request to intervene.

Generally, the decision whether to permit intervention in a case is left to the "sound discretion" of the court in which intervention is sought, as that court is the best positioned to assess potential inefficiencies and unfairness that might result. 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. I fear today's decision will open the floodgates for government officials to evade the consequences of litigation decisions made by their predecessors of different political parties, undermining finality and upsetting the settled expectations of courts, litigants, and the public alike. I respectfully dissent.