SCOTUS to Decide when State Attorneys General May Intervene in Appellate Litigation

In Cameron v. EMW Women’s Surgical Center the U.S. Supreme Court will decide whether an attorney general should be permitted to intervene in a lawsuit after a federal court of appeals invalidates a state statute when no other state actor will defend the law.  

In 2018 Kentucky passed an abortion law, and the Secretary of Health and Family Services was sued. Lawyers from Health and Family Services and the Office of the Governor represented the Secretary in federal district court. Before oral argument in the Sixth Circuit a Democratic governor (formerly the Attorney General) and a new Republican Attorney General were elected.    

The new Secretary retained lawyers from the Kentucky Attorney General’s office to represent him in the Sixth Circuit. The Sixth Circuit ruled against the Secretary, and he decided not to appeal. The Attorney General moved to intervene in the case as a party to petition the entire Sixth Circuit to rehear the case and the U.S. Supreme Court to hear it as well.

The Sixth Circuit ruled against allowing the Attorney General to intervene because of a lack of timeliness. According to the Sixth Circuit: “the Attorney General’s motion to intervene in this case comes years into its progress, after both the district court’s decision and—more critically—this Court’s decision. We rarely grant motions to intervene filed on appeal, and we agree with the D.C. Circuit that ‘[w]here . . . the motion for leave to intervene comes after the court of appeals has decided a case, it is clear that intervention should be even more disfavored.’” 

The Kentucky Attorney General argues he should be able to intervene pointing out that per state law he has significant authority to participate in litigation. He notes that the Sixth Circuit refused to consider factors other than timeliness when disallowing him to intervene—including whether the Attorney General “has a substantial legal interest in the subject matter of this case.” He also argues that the “Ninth Circuit, in particular, has adopted a strong rule favoring state intervention, but the decision below departed from that line of cases.”

The Supreme Court will not decide in this case the constitutionality of Kentucky’s abortion law.