On March 3, 2022, the U.S. Supreme Court decided Cameron v. EMW Women's Surgical Center. Writing for the 8-1 majority, Justice Samuel Alito explained how the the U.S. Court of Appeals for the Sixth Circuit erred in denying the Kentucky attorney general’s motion to intervene on the commonwealth’s behalf in litigation concerning Kentucky House Bill 454, related to the rights of the unborn. Justice Thomas filed a concurring opinion. Justice Kagan filed an opinion concurring in the judgment, in which Justice Breyer joined. Justice Sotomayor filed a dissenting opinion.
Our expert will cover the case, the ruling, and its implications.
Philip D. Williamson, Partner, Taft, Stettinius & Hollister LLP
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Dean Reuter: Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.
Nick Marr: Welcome everyone, to this Federalist Society virtual event. As this afternoon, March 10, 2022, we're hosting a Courthouse Steps Decision webinar—yes, decisions are starting to come down—on a case called Cameron v. EMW Women's Surgical Center.
I'm Nick Marr, Assistant Director of Practice Groups here at The Federalist Society. As always, please note that expressions of opinion on our call today are those of our expert. We're very pleased to be joined today by a lawyer practicing in the Sixth Circuit. He's knows this case pretty well and we're very glad to have him here. I'm just going to give him an introduction and he'll take away reviewing the case, talking about the implications, and we'll be looking to you, the audience, for questions after that. So if you have them know or if a question comes to you during the program, please submit that via the chat function and we'll take it from there.
We're very pleased to be joined today by Philip Williamson. He's a partner at the law firm of Taft, Stettinius & Hollister, I believe in Cincinnati. Is that right?
Philip Williamson: Yes, sir.
Nick Marr: And so with that, Phil, thanks very much for being with us. The floor is yours.
Philip Williamson: Thanks, Nick. It is a pleasure to be on, and thank you all of you for joining and letting me chat for a bit today.
So we recently had a decision, as Nick said, in Cameron v. EMW, and I'll start with the big headline for everyone who has to hop off in the first five minutes. The district court in Kentucky enjoined enforcement of an abortion regulation in a suit against the Kentucky Governors' office. A divided Sixth Circuit panel affirmed, and after that Sixth Circuit decision, the governor declined to seek en banc review or to petition for a writ of certiorari.
When the governor announced that decision, the Kentucky attorney general moved to intervene in order to exhaust those appellate remedies and the panel denied that motion. In an opinion by Justice Alito, the Supreme Court reversed that intervention decision 8-1. What we got was a short, crisp opinion that really unfolds in three parts.
Part one is the question of how in the world did we get here and how did we end up with an intervention case on the Court's docket. Part two is establishing whether the Sixth Circuit in fact had jurisdiction to entertain the motion to intervene. And given that there is a part three, I think the spoiler alert here is yes, the court did have jurisdiction. The back half of the opinion deals with the standards for intervention.
The majority opinion by Justice Alito was joined by all of the usual suspects. The Chief Justice, Justice Thomas, Gorsuch, Barrett, Kavanaugh and I'm certain that I am blanking on someone. It drew a separate concurrence from Justice Thomas. He joined the majority opinion, but also wrote to address a jurisdictional issue. A separate concurrence from Justice Kagan who was joined by Justice Breyer. Again some disagreements with the majority on how they framed the intervention issue. And there's a solo dissent from Justice Sotomayor.
So we'll start with part one of the opinion, that's how we got here. In 2018 Kentucky passed a statute regulating dilation and extraction abortions. EMW, an abortion provider, sued the Secretary of Health and Family Services cabinet, which is an agency of the governor's office and EMW sued the attorney general. Sued both in their capacity as potential enforcers of the abortion regulation.
Now in Kentucky, the governor and attorney general are separately elected, which ends up featuring pretty prominently in how this case unfolds. And so in 2018, Kentucky had a Republican governor and a Democratic attorney general. The attorney general was Andy Beshear. The attorney general was dismissed from that suit without prejudice. And of importance here, the attorney general agreed to be bound by any final judgment subject to modification, reversal or vacation of appeal, and the attorney general reserved the right to "all rights, claims and defenses relating to whether he's a proper party in this action and in any appeals arising out of this action."
The secretary, at the governor's direction, and represented by Matt Kuhn in the governor's counsel's office defended the statute. A district court judge enjoined the statute after a bench trial and the secretary appealed. During the appeal, Kentucky elected Attorney General Beshear as the new governor and then elected a Republican attorney general. So you still have a party split between the two offices, but they had essentially flipped control.
The governor, naturally, appointed a new Secretary of Health and Family Services cabinet but actually continued the appeal in defense of Kentucky's statute. But rather than handling the litigation himself, the governor actually retained the Attorney General's office as counsel to handle the continued litigation. And in a funny turn of events, Matt Kuhn had actually moved from the governor's office to the attorney general's office, so he stepped in to brief and argue the appeal. So what you have is basically a change of the office responsible for running the litigation but the whole time it remains in my good friend, Matt's hands.
You have a divided panel in the Sixth Circuit which affirmed the district court and upheld the injunction against the Kentucky statute. The secretary then announced that he was not going to seek en banc rehearing or petition for certiorari but did not oppose the attorney general taking over the case to exhaust those remedies. So the attorney general's office, again acting through Matt, withdrew as counsel for the secretary and then moved to intervene as a party in his own right. The attorney general's office also tendered a petition for en banc rehearing within the 14-day window that an existing party would have had to file that petition. So what you see is no change to the appellate schedule, no change to the lawyers involved in the case, but a change in the office seeking to defend the statue.
That same divided Sixth Circuit panel denied the motion to intervene for three reasons. First, they thought the motion was untimely because it came after years of litigation and after the panel had issued its decision in the appeal. Second, the panel thought the attorney general had no substantial legal interests in intervening because he sought to pursue two discretionary and rarely granted forms of appeal: an en banc rehearing and petition for cert. Third, the panel thought that intervention would actually prejudice the plaintiff, would prejudice EMW in that case because it included an argument on third-party standing that may or may not have been raised below. There's actually an ongoing matter of dispute that will probably be resolved in some of their further proceedings. So the Supreme Court granted cert on the question of whether the attorney general should have been permitted to intervene. So that's section one.
Section two deals with whether the Sixth Circuit actually had jurisdiction to entertain that motion to intervene in the first place. This was, incidentally, the only point that attracted any amicus support for EMW and it was a position that was unanimously rejected by the Supreme Court. EMW argued that the motion to intervene was jurisdictionally barred. This was a new argument that was raised the first time with the Court, and then EMW argued that typically a non-party who is bound by a district court judgment, as the attorney general agreed to be here, can file a Notice of Appeal of that judgment within the usual Rule 3 and Rule 4 time limits. Because a non-party could obtain appellate review that way, EMW argued that a non-party shouldn't be able to circumvent those time limits by moving to intervene after the deadline has already passed.
So EMW argued the attorney general was a non-party bound by judgment, could have filed a Notice of Appeal and it didn't so his Motion to Intervene should have been treated as an untimely Notice of Appeal and rejected on that basis. The Supreme Court had absolutely none of that, and the Court noted that -- and I'll quote here, "We do not read a statute or rule to impose a jurisdictional requirement unless its language clearly does so." And there's no clear provision of law here that limit's the court of appeal's jurisdiction to hear a Motion to Intervene, or at least not in the way that EMW asked.
The Court reasoned that what EMW really wanted was a mandatory claims processing. The claims processing rules are not jurisdictional, and so it was weighted below and the Court was not going to entertain it. Much for good measure and in the interest of giving guidance to lower courts, I'm sure, the Court also explained why EMW's argument wasn't persuasive. And that was relying on the attorney general's original reservation of rights, which we talked about in section one, which included retaining the right to all claims and defenses in any appeals arising out of its action. And that reservation, the Court reasoned, easily covers the right to seek en banc rehearing or petition for cert. And, of course, the attorney general had only agreed to be bound by whatever version of the final judgment emerged after all appellate review had been completed.
So with jurisdiction out of the way, the Court moved on to part three which was the merits of intervention itself. The Court first noted that there's no statutable rule that creates a general standard for deciding whether to allow an intervention on appeal. So if we have any practitioners or academics who are looking for a good topic, you might spend some time musing out loud about whether we need an interventional rule for the appellate courts and if so, what that rule ought to say. But in the absence of a rule, the Court has historically relied on the policies that underlie intervention in district courts including and in this case, most importantly, the interests that the party is seeking to protect through intervention.
In Cameron, the interest was a big one, and I think an interest that matters to all of us at the Federal Society and is, kind of, at the core of the Society's mission and that's the states' sovereign interest in enforcing and defending its duly enacted statutes. That means that a state's opportunity to defend its laws in federal court, the Supreme Court said should not be lightly cut off. The Court highlighted that a key element of state sovereignty is the state's right to structure its executive branch and in particular to designate multiple officials in its sovereign interest in court. So here, Kentucky empowered both the secretary of the cabinet of Health and Family Services and really, in that instance, the governor and the attorney general to defend its sovereign interests.
If I am remembering the argument correctly, the attorney general couched this as Kentucky creating a fail-safe to ensure that its laws are always defended. And that if a state is actually going to withdraw from litigation, you really have to persuade multiple offices to give up the fight.
The Court suggests that as a constitutional matter, federal courts are duty-bound to respect the choices that states make about how to organize their executive branch and how they are going to assign litigation authority. This was the chief point, I think, where the majority and the Kagan and Breyer dissent disagreed. For Justices Kagan and Breyer, this isn't really a constitutional question, it's just an important interest. But for the majority it is a matter of constitutional federalism that federal courts must respect and heavily weigh states' interests in defending its own laws.
And so the chief error that the Sixth Circuit made was discounting the attorney general's interest in taking up its defense of the state statute. Now, in a footnote, the Court addressed the attorney general's prior dismissal and points out when the attorney general was originally sued, he was sued in his official capacity as someone who could enforce Kentucky's regulation. When he came back on appeal to intervene, he was intervening in his capacity as Chief Law Officer for Commonwealth and as the office principally charged with defending state statutes. With that in mind, the Court said the rest of the intervention factor is also in favor of the attorney general, namely timeliness and the absence of prejudice to any of the other parties.
The Court, I think reasonably held that the attorney general was timely because he sought to intervene as soon as it was clear that Kentucky's sovereign interests would no longer be protected by the parties in the case. There was no need to intervene when the Secretary was still defending the statute, particularly when the secretary had hired the AG to litigate the case. But once the secretary decided to withdraw, the attorney general very promptly moved to intervene and as we noted in the first section, actually filed a petition for en banc rehearing within the timeline normally required for existing parties to petition. So we didn't actually see any change to litigation schedule on account of attorney general's intervention.
As to prejudice, the Court noted that the third-party standing issue wasn't the only issue in the rehearing petition and that the secretary actually could have raised third-party standing himself if he had been the one to file the rehearing petition and it would have left the Sixth Circuit in the same position it's in now, which is deciding whether that third-party standing argument was waived. EMW also argued that they had a reasonable expectation that when Beshear was elected Governor owing to his pre-existing and campaign commitments to abortion rights, they had a reasonable expectation that he would, in fact, drop the suit so EMW would, in fact, not have to continue to litigate and could enjoy the fruits of their injunction. And the Court spent about a paragraph explaining that this is not the kind of reasonable expectation that we take seriously when evaluating prejudice in a Motion to Intervene.
Justice Thomas added a short concurrence. He joined the majority opinion in full, but wrote separately to talk about the jurisdictional question, making the elementary observation that only parties could appeal under the federal rules of appellate procedure. And that the attorney general had ceased to be a party when he was dismissed at the beginning of the case. And so rather than treating the Motion to Intervene as an untimely Notice of Appeal, Justice Thomas points out, the attorney general never could have filed a Notice of Appeal in the first place. Justice Thomas does not believe that a non-party, bound by a judgment, actually has a right to appeal. Appeals, in his view, are reserved for parties.
Justice Kagan also wrote a separate concurrence. She did not join the majority opinion although her concurrence was actually really similar to the majority opinion. She took EMW's anti-circumvention concern a little more seriously. This idea that a party shouldn't be able to agree to be bound by judgment, decide not to appeal and then move to intervene after the appellate decision comes down. She thought that was a serious concern but not one really implicated here because in this case the attorney general did not appeal because he didn't need to. The substantiate function of defending state statute was capably in the secretary's hands until it wasn't. Kagan's, sort of, chief disagreement of the majority was over whether to frame the attorney general's interest as a constitutional interest in defending the state statute or merely a really good reason to allow intervention.
And lastly, you had Justice Sotomayor writing alone in dissent. And for her, the bottom line is that she thinks the attorney general should have been bound by his early dismissal and should not have been able to re-enter a case years after it's already begun. It's important to note that she didn't buy the jurisdictional argument from EMW but she did fault the attorney general for seeking dismissal in 2018 on a theory that he wasn't actually an officer who could enforce the statute and then seeking to re-enter the case to defend that statute after the Sixth Circuit had issued its decision. And so for her, it was principally a matter of whether intervention was justified, not really a question of whether it really was even permissible or if the Sixth Circuit discretion to do it.
A couple of the big takeaways here are number one, the federalism question of how do we treat a state interest in defending its laws, and to whom is that interest committed? So if you would frame this case, and I think what Justice Sotomayor's dissent probably makes more sense if you frame the case as a lawsuit against the governor's office or against the secretary of Health and Family Services or against the attorney general. But the majority, somewhat subtly, instead framed this case really as a suit against the Commonwealth of Kentucky seeking to invalidate one of its laws. And the Commonwealth has the right to defend and vindicate its interests in its own statutes through essentially whichever officers it chooses to give that authority.
And so particularly for those of you practicing in state law or working for state governments, this case -- if we have any state legislators on the call or anyone advising state legislators, I think this case is really a call to think seriously about how your state structures the offices responsible for defending state law. The Court has signaled that it is willing to defer to whatever choices a state makes but that it will also hold a state to the choices that it makes. So this case, I think, differs a little bit from the Virginia election suit a couple of years ago where the Virginia legislator sought to intervene in a case after the governor and attorney general had ceased defending the state statute and the Court simply said, look Virginia gets to choose its officers that will defend its statutes; it didn't choose the legislature so the legislature is not going to be permitted to intervene here whereas in Cameron, Kentucky had in fact given the attorney general an interest in defending state statutes and so we're going to respect that choice and permit the attorney general to intervene.
The other key issue here is the way that the Court frames timeliness when considering a Motion to Intervene. The Court doesn't seem terribly troubled by how long litigation has gone on prior to a Motion to Intervene. Timeliness is really measured from when the intervening party first understands it might need to intervene to defend its interest or that the existing parties of the case are not adequately protecting its interests. So again, for all you fed courts practitioners, this case is, again, I think a serious call to just take a careful look at the way that you think about intervention, the way that you watch dockets. The Court will be forgiving if you're prompt once you figure out that you have an interest that needs to be protected.
So with that, I think I have talked long enough and I'm happy to take some questions and talk some more.
Nick Marr: Well, thanks very much, Phil. That was a really great overview. I definitely learned some parts of the procedure and background I didn't know so I appreciate that. Another reminder to our audience, we're looking to you for questions in a couple of minutes and now. So please send those via the chat function or the chat and Q&A function. We'll get it either way and be able to review it.
So one question I had is, kind of, I know you touched on the implications going forward. Discussing how states -- the Court has shown a willingness to defer to states and how they choose to enforce their laws, to whom they give that power. But they're going to hold the state to those choices. You know, this case, I think, got a lot of attention because it involved -- even though it involved a law, it was a procedural issue, and it involved the issue of abortion. Going forward, the Supreme Court has a big abortion case before it and may decide to basically enable states to make all kinds of different abortion laws.
How if any way, does this decision relate to that future possibility? Does that make sense?
Philip Williamson: Yeah. So this is the kind of issue that is mostly going to come up in the abortion context because generally speaking most state officers, whether it's governor's office or attorney general's office which tend to be the chief litigating units I think in all of our states, they do their jobs. Even if you don't like a law, you're duty-bound and oath-bound to defend it in court, to make, you know, any non-frivolous argument in good faith in defense of the statute, and we count on our elected officials to do this. And there're basically three contexts where that doesn't happen. That is abortion litigation; it comes up in the context, or at least came up in the context of lawsuits over marriage definitions, and then it comes up in election cases. And in those three cases, that's where you're most likely to see these Motions to Intervene from other state officials and state officers who want us to defend state statutes.
Where the rubber's going to meet the road actually is in who states decide to give this litigation authority to. So in Kentucky, this case arises only because the governor and attorney general are elected separately, and the people of Kentucky put those offices in the hands of different local parties in two consecutive elections. This case does not arise if you have a Democratic attorney general and governor that entire six year stretch or if you have a Republican governor and Republican attorney general in that entire stretch. It also has implications for states like Virginia when they had their election suit a few years ago, North Carolina now where you might have an executive branch that's entirely in one party's hands and a state legislature of a different party and a real disagreement over who's going to step in and defend state statutes there. States with that kind of co-habitation might want to think seriously about how they structure defense statues.
But the outcome of Dobbs is going to matter here. I couldn't tell you how because we don't know yet how Dobbs is going to be resolved but Dobbs is in one of, like I said, just three contexts where these intervention issues arise in the first place.
Nick Marr: That's interesting. We've got a couple of audience questions right now actually, so we'll go to those. Please submit them via chat for the audience, if you have a question about this case, its implications, anything like that.
First question is kind of interesting: "Why was there no conflict of interest by the AG?" I presume they mean for the AG. Just explain the background.
Philip Williamson: I think in this case a really admirable bit of comedy between the attorney general and governor's offices. When the governor announced that he would not be pursuing the appeal, he agreed to waive conflicts for the attorney general's office to step in and continue to defend. I'm not sure that there would have been a bona fide conflict anyway but the governor's office waived conflict, said we're not interested in defending this, but we know it needs to be done. Attorney general, you care, you carry on.
Nick Marr: Great. Our next question is a great first principles question in the realm of federalism. "What is the best way to determine which officers have the authority to defend a state's statutes?"
Philip Williamson: Great question. Part of that is going to be the simple question of, well, who's getting sued. If you get sued, you do get to defend the suit, and I think that's the principle reason why the governor was involved in this case in the first place. It was actually an agency of the governor's office charged with enforcing the statute. And so if you want an injunction against enforcement, you've got to sue the officer who's responsible for enforcement.
Beyond that, it means doing some digging in your state's code. There is often an answer to that question, particularly if the legislature has decided that someone besides the attorney general's office is going to be responsible for litigation in the state, you're going to find that somewhere in your state code or in your state constitution. The other is, and the principle reason why the attorney general often has authority, is most states will have language in the state constitution or in the statute that creates the attorney general's office that says, you know, the attorney general shall be the chief legal officer of the state. It may assign some rights and responsibilities, but we generally understand that chief legal officer language to mean you possess the state's litigation power.
Nick Marr: Yeah. That make's sense. We have a comment or a question. "State Freedom of Information laws." I'm not sure if there is a question there. If there is a question, you can submit it but maybe this is an example or maybe a question as what about the State Freedom of Information Acts. Who enforces that?
Philip Williamson: Well, I read it as an answer to the previous question, which is certainly one way to figure out who's responsible for doing litigations in a state.
Nick Marr: Or the deep digging you mentioned --
Philip Williamson: Exactly.
Nick Marr: -- into the statutes, you know the hard work. Just another call for audience questions here. I have a question. I like to ask this one in all rulings across the board. Was there anything that surprised you about the ruling or about the breakdown or about anything in that regard, like something striking?
Philip Williamson: To be honest with you, I was surprised at how straightforward the majority opinion was given that we tend to get a lot of complicated legalese, particularly when we're dealing with statutory or rule construction or this odd intersection of statutory construction and policy decisions. And I've always appreciated this about the way that Justice Alito writes, this case really was, what are our first principles and intuitions? So if you read the majority opinion, there are not a ton of cases cited in the opinion. It really is an unfolding of, well, of course we think someone ought to be allowed to defend the state statutes. And of course if the governor raises his hand and says, "I'm not going to do it but the attorney general can do it and its fine with me if the attorney general does it," what in the world is an appellate panel doing saying, "We don't want to hear it?" And for me it was a refreshing application of common sense in a profession that often leaves it behind and buries it under a lot of Latin.
Nick Marr: I'm kind of thinking out loud here, but you mentioned this kind of thing happens typically in three cases and those three cases seem to involve, you know, important policy issues, important issues of politics so whoever's voted into office, they're just going to set those policies. How does this schema—and this kind of -- the Court's return to first principles, if you will, about law enforcement—apply to, if in any way, state judges and those, especially those state judges who are elected? Does that make sense? Is there any, kind of, maybe lessons to learn there or anything like that?
Philip Williamson: One overarching lesson of this case is elections have consequences. They just do. We were in this case largely because of a change in control of the governor's office. So elections matter. I think one implication, particularly for states that have elected judges, is that you really do get opportunities to correct issues like this. It is also the kind of case where you could have seen, like, a Motion to Certify to a state supreme court to determine, like, who actually has litigation authority. It would have been, I think, perfectly fair game for the Sixth Circuit to have asked the Kentucky Supreme Court, "Who's in charge here?" Elections have consequences.
Nick Marr: I'll offer another call for audience questions, but if we don't have any, we'll return everyone's half hour here.
Philip Williamson: Nick, did I answer yours or did I dodge it?
Nick Marr: No, I think that's -- that's good. Very good. Well, seeing none, I want to thank you, Phil, on behalf of The Federalist Society very much for your time and expertise today in covering this case for us. It was really valuable. I learned a lot. Thank you to our audience for dialing in here, for your great questions, especially for the first principles one. Keep an eye on your email and our website for announcements about upcoming calls like this one, especially as we get more rulings coming down the pipe. But until next time, until that next event, thank you all very much. We are adjourned.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.