How Loud is Your State’s Voice at the High Court?

Comparing State Attorney General Activity at the U.S.

Supreme Court

Harry NiskaFederalist Society – Minnesota Lawyers’ Chapter

February 7, 2017

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

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

States’ PerspectiveSignificance of Supreme Court litigation to advancing 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

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).

Activity StudyPurpose• 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.

Activity StudyMethodologyTimeframe: 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

Activity StudyMethodology

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

Activity StudyList of casesDouglas v. Santa Rosa Memorial HospitalHowes v. FieldsMartinez v. RyanMaples v. Thomas Missouri v. FryeLafler v. CooperPerry v. New HampshireMesserschmidt v. MillenderMartel v. Clair Williams v. IllinoisColeman v. Maryland Court of AppealsFilarsky v. DeliaFreeman v. Quicken LoansUS v. Alvarez

Blueford v. ArkansasJackson v. HobbsNFIB v. HHSArizona v. USAmerican Tradition Partnership, Inc. v. BullockFlorida v. HarrisFlorida v. JardinesChaidez v. United StatesFTC v. Phoebe Putney Health System Inc.Bailey v. USDecker v. Northwest Environmental Defense CenterStandard Fire Ins. Co v. KnowlesMissouri v. McNeely

Trevino v. ThalerMaryland v. KingAmerican Express Co. v. Italian Colors RestaurantDan’s City Used Cars, Inc. v. PelkeyFTC v. ActavisHollingsworth v. PerryUS v. WindsorSalinas v. TexasMadigan v. LevinBurt v. TitlowKansas v. CheeverSprint Communications Co. v. Jacobs

Activity StudyList of casesMississippi ex rel. Hood v. AU Optronics Corp.Town of Greece v. GallowayEPA v. EME Homer City GenerationMcCullen v. CoakleyHarris v. QuinnNavarette v. CaliforniaAbramski v. United StatesParoline v. USUtility Air Regulatory Group v. EPAOctane Fitness LLC v. Icon Health & Fitness, Inc.Plumhoff v. RickardHalliburton v. Erica P. John Fund, Inc.Burwell v. Hobby Lobby Stores, Inc.

Republic of Argentina v. NML Capital, Ltd.Heien v. North CarolinaNorth Carolina State Board of Dental Examiners v. FTCJesinoski v. Countrywide Home LoansDirect Marketing Assoc. v. BrohlOneok Inc. v. Learjet, Inc.Armstrong v. Exceptional Child Center, Inc.Ohio v. ClarkKing v. BurwellMichigan v. EPAObergefell v. HodgesBruce v. Samuels

Franchise Tax Board of California v. HyattEvenwel v. AbbottFriedrichs v. Cal. Teachers Ass’nDuncan v. OwensUtah v. StreiffWhole Woman’s Health v. HellerstedtZubik v. BurwellRoss v. BlakeUS Army Corp of Engineers v. HawkesU.S. v. TexasJohnson v. LeeUniversal Health Servs., Inc. v. US & Mass. ex rel. Escobar

Activity StudyState Interests: NFIBState 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 GovernmentOregon brief on Medicaid expansion:“Amici . . . have no more important duty than protecting the health and safety of their citizens.”

Activity StudyState Interests: Hobby LobbyCalifornia/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.”

Activity StudyState Interests: FriedrichsNY 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.”

Activity StudyState Interests: U.S. v. TexasTexas-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.”

Activity StudyScoring

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

Activity StudyPure Activity Score Rankings

1.Michigan2.Arizona3.Idaho4.Alabama5.Hawaii6.Utah7.Kansas8.New Mexico9.Washington

10.Delaware11.Indiana12.Nebraska13.Oklahoma14.Florida15.Maryland16.South Carolina17.South Dakota18.Oregon

19.Colorado20.Tennessee21.Illinois22.Texas23.Wyoming24.North Dakota25.Wisconsin

Activity StudyPure Activity Score Rankings

26. Arkansas27. Maine28.Alaska29.Connecticut30.Georgia31.Iowa32.Montana33.Kentucky34.Rhode Island

35.Ohio36.Pennsylvania37.West Virginia38.Vermont39.Mississippi40.Nevada41.Louisiana42.New

Hampshire

43.Virginia44.California45.Massachusetts46.New York47.Missouri48.Minnesota49.North Carolina50.New Jersey

Activity StudyWeighted Activity Score Rankings

1.Michigan2.Alabama3.Texas4.Arizona5.Idaho6.Kansas7.Illinois8.Indiana9.Utah

10.Florida11.Nebraska12.South Carolina13.Maryland14.Oklahoma15.Washington16.Delaware17.Hawaii18.New Mexico

19.Ohio20.Oregon21.California22.South Dakota23.Arkansas24.North Dakota25.Wisconsin

Activity StudyWeighted Activity Score Rankings

26. Colorado27. Connecticut28. Tennessee29. Georgia30.Maine31.West Virginia32.Wyoming33.Alaska34.Rhode Island

35.Iowa36.Louisiana37.Montana38.Vermont39.New York40.Kentucky41.Massachusetts42.Mississippi43.New Hampshire

44.Pennsylvania45.Virginia46.Nevada47.Missouri48.North Carolina49.Minnesota50.New Jersey

Activity StudyTrends and observationsSignificant 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

Activity StudyTrends and observations

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Pure Activity Score Distribution

Activity StudyTrends 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)

Activity StudyTrends 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)

More questions?

Harry Niska www.facebook.com/HarryNiska

Ross & Orenstein LLCwww.rossbizlaw.com

hniska@rossbizlaw.com(612) 436-9804