1. How Loud is Your State’s Voice at
the High Court?
Comparing State Attorney General
Activity at the U.S. Supreme Court
Harry Niska
Federalist Society – Minnesota Lawyers’ Chapter
February 7, 2017
2. Overview
• Importance of State AG activity at Supreme Court
• Court’s perspective
• States’ perspective
• Relevant conclusions from prior research
• Activity Study
• Purpose
• Methodology
• Results & Observations
3. Court’s perspective
Significance of State AGs as institutional
actors
• Favored party under Supreme Court rules
• Supreme Court Rule 37.4 exempts certain governmental parties,
including state AGs, from consent/motion requirements for filing amicus
briefs
• Collectively, state AGs are widely considered the second most-
significant institutional player at the Court
4. States’ Perspective
Significance of Supreme Court litigation to
State AG duties and interests
• Federalism
• Federal constitutional challenges to state laws or practices
• State sovereign or proprietary interests
• Protecting legal rights of state citizens
5. Existing Research
• State AG activity has increased at Supreme Court
• Amicus briefing has increased
• State AG activity and coordination has increased
• Partisan sorting of coalitions increasing
• State AGs are an effective voice in shaping Supreme Court decisions
• Repeat players become more effective by virtue of continued activity
• Heterogeneous coalitions more effective
See, e.g., Lemos & Quinn, Litigating State Interests: Attorneys General as Amici, 90 NYU L. REV.
1229 (2015); Harper, The Effectiveness of State-Filed Amicus Briefs at the United States Supreme
Court, 16 J. OF CONST. LAW. 1503 (2016).
6. Activity Study
Purpose
• Fair comparison between different state AGs
• Content neutral
• “In any moment of decision, the best thing you can do is the right thing,
the next best thing is the wrong thing, and the worst thing you can do is
nothing.” commonly attributed to Theodore Roosevelt
• But see, e.g., Harry Niska, “Minnesota attorney general should reconsider
and join challenge to Obama health-care law,” MINNPOST, Jan. 11, 2012.
7. Activity Study
Methodology
Timeframe: Five most recent terms (OT 2011 to OT 2015)
Scope: Merits cases involving broad state interest
• “Merits case” defined by opinion on the merits
• Includes summary reversals
• Cases counted based on consolidation for purpose of opinion
• Threshold based on involvement of at least 20 state AGs
8. Activity Study
Methodology
Twenty-state threshold for cases of broad state interest
• Excludes issues of idiosyncratic state interest, such as death penalty
administration or water rights
• Threshold based on cases where AG office listed as counsel
• 1 special exception for Connecticut Chief States’ Attorney
• Resulted in exclusion of Birchfield/Bernard/Beylund cases
76 qualifying cases fit the criteria
9. Activity Study
List of cases
Douglas v. Santa Rosa Memorial Hospital
Howes v. Fields
Martinez v. Ryan
Maples v. Thomas
Missouri v. Frye
Lafler v. Cooper
Perry v. New Hampshire
Messerschmidt v. Millender
Martel v. Clair
Williams v. Illinois
Coleman v. Maryland Court of Appeals
Filarsky v. Delia
Freeman v. Quicken Loans
US v. Alvarez
Blueford v. Arkansas
Jackson v. Hobbs
NFIB v. HHS
Arizona v. US
American Tradition Partnership, Inc. v.
Bullock
Florida v. Harris
Florida v. Jardines
Chaidez v. United States
FTC v. Phoebe Putney Health System Inc.
Bailey v. US
Decker v. Northwest Environmental
Defense Center
Standard Fire Ins. Co v. Knowles
Missouri v. McNeely
Trevino v. Thaler
Maryland v. King
American Express Co. v. Italian Colors
Restaurant
Dan’s City Used Cars, Inc. v. Pelkey
FTC v. Actavis
Hollingsworth v. Perry
US v. Windsor
Salinas v. Texas
Madigan v. Levin
Burt v. Titlow
Kansas v. Cheever
Sprint Communications Co. v. Jacobs
10. Activity Study
List of cases
Mississippi ex rel. Hood v. AU Optronics
Corp.
Town of Greece v. Galloway
EPA v. EME Homer City Generation
McCullen v. Coakley
Harris v. Quinn
Navarette v. California
Abramski v. United States
Paroline v. US
Utility Air Regulatory Group v. EPA
Octane Fitness LLC v. Icon Health &
Fitness, Inc.
Plumhoff v. Rickard
Halliburton v. Erica P. John Fund, Inc.
Burwell v. Hobby Lobby Stores, Inc.
Republic of Argentina v. NML Capital, Ltd.
Heien v. North Carolina
North Carolina State Board of Dental
Examiners v. FTC
Jesinoski v. Countrywide Home Loans
Direct Marketing Assoc. v. Brohl
Oneok Inc. v. Learjet, Inc.
Armstrong v. Exceptional Child Center, Inc.
Ohio v. Clark
King v. Burwell
Michigan v. EPA
Obergefell v. Hodges
Bruce v. Samuels
Franchise Tax Board of California v. Hyatt
Evenwel v. Abbott
Friedrichs v. Cal. Teachers Ass’n
Duncan v. Owens
Utah v. Streiff
Whole Woman’s Health v. Hellerstedt
Zubik v. Burwell
Ross v. Blake
US Army Corp of Engineers v. Hawkes
U.S. v. Texas
Johnson v. Lee
Universal Health Servs., Inc. v. US & Mass.
ex rel. Escobar
11. Activity Study
State Interests: NFIB
State challengers (led by Florida)
Florida brief on individual
mandate:
“The Constitution grants the
federal government only limited
and enumerated powers and
reserves the plenary police
power to the States.”
Amici supporting Federal Government
Oregon brief on Medicaid
expansion:
“Amici . . . have no more
important duty than protecting
the health and safety of their
citizens.”
12. Activity Study
State Interests: Hobby Lobby
California/Massachusetts amicus (15 total
states) supporting federal government
• “States have a strong interest
in ensuring that RFRA [is] not
improperly read to displace”
state corporation principles.
• “States have their own
compelling interests in
promoting public health and
gender equity.”
Michigan/Ohio amicus (20 total states)
supporting religious objectors
• “The Amici States have a
strong interest in preserving
their ability to structure the law
of corporations.”
• “[T]he Amici States have a
substantial interest in
protecting religious liberty”
and “seek to foster a robust
business climate in which
diverse employers can
succeed.”
13. Activity Study
State Interests: Friedrichs
NY Amicus (21 states) supporting
California mandatory union due law
• “Amici States have a significant
interest in preserving the
flexibility to structure public-
sector labor relations that
Abood allows.”
• “Amici States also have a
substantial interest in avoiding
the vast disruption in state and
local labor relations that would
occur” if Abood is overruled.
Michigan amicus brief (18 states)
supporting First Amendment challenge
• “Amici States have a vital
interest in protecting the First
Amendment rights of public
employees, and in the fiscal
health of state and local
governments.”
14. Activity Study
State Interests: U.S. v. Texas
Texas-led Respondents
• Asserted standing based on
“financial injury” to the state,
as well as “parens patriae
standing to vindicate their
quasi-sovereign interest in
protecting their citizens from
labor-market distortions.”
Washington amicus brief (16 states)
• “The amici States have a strong
interest in this case because
the injunction entered below is
preventing our States and
millions of our residents from
receiving the substantial . . .
benefits that flow from the
President’s 2014 immigration
guidance.”
15. Activity Study
Scoring
Pure Activity Score
Binary Scoring
• 1 point for any participation
• 0 points for lack of participation
* In cases with multiple briefs on
multiple issues, no extra credit for
joining multiple briefs
Weighted Activity Score
Differentiated Scoring by role
• 3 points for parties
• 2 points for lead amicus
author
• 1 point for joining amicus
brief
19. Activity Study
Weighted Activity Score Rankings
26. Colorado
27. Connecticut
28. Tennessee
29. Georgia
30.Maine
31.West Virginia
32.Wyoming
33.Alaska
34.Rhode Island
35.Iowa
36.Louisiana
37.Montana
38.Vermont
39.New York
40.Kentucky
41.Massachusetts
42.Mississippi
43.New Hampshire
44.Pennsylvania
45.Virginia
46.Nevada
47.Missouri
48.North Carolina
49.Minnesota
50.New Jersey
20. Activity Study
Trends and observations
Significant variability in state representation
• Michigan (#1) involved in 61 of 76 cases: 80%
• Minnesota (#48 PAS | #49 WAS) involved in 23 of 76 cases: 30%
• New Jersey (#50) involved in only 13 of 76 cases: 17%
• Most of the states – 38 out of 50 (76%) – were represented in at least
half of the selected cases
21. Activity Study
Trends and observations
0
10
20
30
40
50
60
70
0 10 20 30 40 50 60
Pure Activity Score Distribution
22. Activity Study
Trends and observations
• Partisan control was significantly correlated with activity
• 19 Republican-controlled: Mean of Ranks = 16.4 (PAS) | 14.7 (WAS)
• 19 Democrat-controlled: Mean of Ranks = 31.6 (PAS) | 31.3 (WAS)
• 12 changed control: Mean of Ranks = 30.2 (PAS) | 33.3 (WAS)
23. Activity Study
Trends and observations
• Selection method somewhat correlated
• 43 State AGs are popularly elected
• 7 are appointed (Alaska, Hawaii, Maine, New Hampshire, New Jersey,
Tennessee, Wyoming)
• Often hypothesized that elected AGs are more entrepreneurial or
aggressive than appointed AGs
Mean of Ranks: 27.8 (PAS) | 33.2 (WAS)
