Supreme Court to Review Sixth Circuit Decision Involving Sovereignty of State Attorney General

Can a state attorney general stand alone?  That is the question posed by an upcoming Supreme Court case concerning Kentucky Attorney General Daniel Cameron’s effort to intervene to defend to a Kentucky statute that was recently struck down by the Sixth Circuit.  The Supreme Court’s answer is likely to have implications in many future situations in which the political persuasions of state attorneys general and other state elected officials differ sharply.

Kentucky in 2018 passed a law regulating a certain type of abortion procedure.  The law was quickly challenged by a clinic and several physicians in Kentucky, who named as defendants both the Commonwealth’s Secretary for Health and Family Services, as well as the Attorney General.  At the time, Kentucky’s Attorney General was Andy Beshear, a Democrat who is now the governor.  While he was Attorney General, Beshear negotiated a stipulation of dismissal of the Attorney General from the case, and did not defend the law.  The Secretary, a supporter of the law, defended the law at the trial level, where it was invalidated by a federal district court judge.  The Secretary then appealed to the Sixth Circuit.

Following briefing in the appeal, Kentucky held a general election in which Andy Beshear was elected Governor and Daniel Cameron – a Republican – was elected Attorney General. Oral arguments before the Sixth Circuit were held the day before Attorney General Cameron was sworn in.  Following oral argument, the Sixth Circuit affirmed the district court’s judgment.  The new Secretary for Health and Family Services, appointed by Beshear, then indicated that he would not seek rehearing or file a petition for a writ of certiorari.

Newly sworn-in Attorney General Cameron then moved to intervene on behalf of the Commonwealth and to file a petition for rehearing before the Sixth Circuit, which the Sixth Circuit denied.  A few days later, the Supreme Court handed down its decision in June Medical Services LLC v. Russo, 591 U.S. __ (2020), which Cameron argues is highly relevant to the Sixth Circuit’s decision on the Kentucky statute. When the Sixth Circuit again refused Cameron’s efforts to demand a rehearing, Cameron filed a petition for a writ of certiorari.

In the petition, Cameron argues primarily that, as chief law enforcement officer in Kentucky, the Attorney General has inherent power to determine when a case implicates a state interest that warrants the Commonwealth’s intervention, as well as power to decide when to appeal a decision that affects the Commonwealth.  While Kentucky law indeed makes that power clear, the Attorney General’s argument seems to imply that, in deference to that authority, courts should accommodate a state attorney general’s intervention in situations in which they otherwise might not do so.  In opposition, the clinic argues that Cameron’s intervention simply came too late in the case, as the Sixth Circuit held, and that the Attorney General should not be treated differently from any other litigant attempting to intervene after judgment.

Conflicts between governors and attorneys general of different political persuasion are not new; throughout the Trump administration, for example, Maine’s Republican Governor Paul LePage and Attorney General Janet Mills had a highly adversarial relationship on many issues, including a lawsuit by LePage related to challenges to Trump administration policies that were joined by Mills. With the shoe now on the other foot – and with many Republican attorneys general vowing to fight President Biden’s priorities in court – these conflicts are likely to continue, and  It seems likely in this case, which could be decided narrowly on the procedural question of how late in the case an intervention should be allowed, that at least some members of the Supreme Court are interested in the subject matter of the underlying dispute and, in particular, how June Medical may be applied to the Kentucky statute.  Indeed, Attorney General Cameron devotes a substantial portion of the petition to those details, even though they are not directly relevant to the procedural questions at issue.  Nonetheless, the Supreme Court’s broader pronouncement on the ability of state attorneys general to intervene in cases implicating state statutes may have an effect on how conflicts between state attorneys general and other officers of state government play out in the future.

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