Hidden Nondefense: Partisanship in State Attorneys General Amicus Briefs and the Need for Transparency
19 Pages Posted: 7 Aug 2019
Date Written: April 1, 2019
In all fifty states, the State Attorney General (SAG) — as the state’s chief legal officer — is charged with defending state laws that are challenged in court. If an SAG declines to defend or challenges a state law on the ground that it is unconstitutional — an action scholars describe as “nondefense” — the SAG ordinarily will disclose this decision to the public.
This Essay discusses a hidden form of nondefense that can occur when SAGs file amicus curiae briefs on behalf of their states in matters before the U.S. Supreme Court. Surprisingly, some SAGs have joined multistate amicus briefs that support invalidating other states’ laws without disclosing that similar state or local laws exist in the SAGs’ own jurisdictions. This Essay explores this problem through analysis of multistate amicus briefs filed in the 2017 Supreme Court term. It proposes requiring that SAGs disclose relevant laws from their state when they file amicus briefs on behalf of their state with the Supreme Court.
Keywords: State Attorney General, partisanship, amicus brief, Supreme Court, nondefense, government lawyers, professional responsibility, Masterpiece Cakeshop
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