Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Monday, January 11, 2021

Self Over State: Republican Attorneys’ General Supreme Court Briefs Show the Need for Accountability

This is a guest post by Lisa F. Grumet, Visiting Associate Professor of Law at New York Law School.

The events of this past week have shown the importance, and vulnerability, of the rule of law in the United States. These events have also shown the dangers when public officials who are responsible for upholding the law prioritize their own perceived self-interest over their institutional roles and professional responsibility. While the horrific events of January 6, 2021 were incited by President Donald Trump, as well as members of Congress who supported his efforts to nullify millions of votes, it’s important to remember the antidemocratic efforts of other public officials who also sought to overturn the election outcome. These officials included Republican State Attorneys’ General in Texas and 17 other states who pursued frivolous litigation asking the U.S. Supreme Court to invalidate the election results in four states. President-elect Joe Biden observed that they had adopted a “position so extreme we’ve never seen it before.”

In their enthusiasm to invalidate other states’ votes for Biden, some Republican AGs endorsed legal arguments that put their own states’ elections at risk. The briefs failed to disclose that some of their states had election practices that were similar to the practices they challenged in Pennsylvania, Georgia, Michigan, and Wisconsin. In particular, the briefs questioned the integrity of mail-in voting procedures, and challenged the alleged issuance of “new rules” for the 2020 election. However, as noted in an opposing amicus brief filed by 23 Democratic and Independent AGs, some of the Republican AGs’ states had similar election practices, and some of the states had election rules changed by state executive officials because of COVID-19. For example, Utah had voting by mail options for several years before the pandemic; and Texas’s Governor suspended election laws in October 2020 to extend the early voting period for the November election.

The practice of AGs challenging other states’ laws before the Court, while ignoring similar laws in their own states, is not new. Since lawsuits between states are rare, this dynamic usually arises in the context of amicus briefs. When one state is sued and the state’s AG defends its law before the Supreme Court, sometimes AGs from other states will file an amicus brief supporting the other side. In these partisan times, it’s not uncommon for large coalitions of Democratic and Republican AGs to file briefs on opposite sides in significant cases. When they file or sign on to amicus briefs, they are not required to disclose how the outcome of the case will affect laws in their own states. While some briefs might offer such detail, others do not, making it difficult to assess the potential impact of the litigation on laws in the AGs’ own states.

I have previously described this practice as “hidden nondefense.” “Nondefense” typically refers to an AG publicly declining to defend a state’s law; for example, before Obergefell v. Hodges, some AGs declined to defend laws prohibiting same-sex marriage in their states on the ground that the laws were unconstitutional. “Hidden” nondefense is different: it occurs when an AG ignores the substance—or even the existence—of a law in the AG’s own state, while making legal arguments that may ultimately undermine it. For example, some Republican AGs endorsed arguments that contradicted laws in their own states in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, challenging Colorado’s enforcement of a nondiscrimination law against a bakery, and in Janus v. AFSCME, Council 31, challenging an Illinois law permitting government employee unions to collect “agency fees” from non-members. Also, some Republican AGs have opposed the City of Philadelphia in Fulton v. City of Philadelphia, pending litigation about enforcement of a nondiscrimination ordinance against publicly funded private foster care agencies that refuse to work with same-sex couples. There, two Republican AG briefs discuss the U.S. Constitution and state laws concerning religious freedom, but do not discuss the potential impact of their position on enforcement of laws prohibiting discrimination in public accommodations in some of their own states.

AGs are their states’ chief legal officers. It is because of their institutional role that they are privileged to speak for their states before the Court. The Republican AGs’ actions in Texas v. Pennsylvania and other significant cases show the need for transparency and accountability in the way AGs represent their states before the high court. Hidden nondefense transforms the state AG’s role: when an AG’s brief disregards the state’s own laws and practices, the AG represents the state in name only. This is dangerous and subverts democracy and principles of separation of powers.

One practical solution that I have previously recommended would be to simply amend the Supreme Court's Rules to require all AGs to disclose in Supreme Court briefs whether any laws in their own states could be impacted by the position they are taking before the Court. Members of the press and public should scrutinize AG briefs to ensure that AGs are held publicly accountable for the positions that they take.
Another approach, which could provide for greater accountability, would be to strengthen state professional responsibility codes. Rule 3.3 of the Model Rules of Professional Conduct (“Candor Toward the Tribunal”) provides that attorneys shall not knowingly “fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.” For AGs, the “controlling jurisdiction” should include their own state. Although state law may not be “controlling” for the U.S. Supreme Court, it should at least be mentioned by the AG charged with upholding state law. If the AG has determined that the state’s law is unconstitutional, the AG should say so and explain this position to the Court and the public, rather than ignoring the law’s very existence.

Absent a requirement for disclosing the impacts on their own states’ laws, AGs are seemingly free to use the Supreme Court as a forum for achieving personal or partisan goals, without regard to their professional responsibilities to their constituents and the Court. Change is needed so that our states’ chief legal officers are held accountable when they use Supreme Court litigation to promote partisan politics or personal interests over the rule of law. I am hopeful that the 2020 election results represent a turning point for restoring confidence in our legal system and our governing institutions. Enhancing accountability for state AGs should be one part of this process.

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Please stop your self-righteous shrieking. You're part of the problem.

Posted by: Moderate Molly | Jan 12, 2021 6:25:39 AM

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