Bonus 67: Private Interest Groups *as* State Attorneys General

The Alliance Defending Freedom is representing the State of Idaho in two high-profile cases before the U.S. Supreme Court. Their relationship raises some hard questions about states as litigants.

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this (like this Monday’s preview of yesterday’s argument in the “Good Neighbor” ozone pollution cases), much of the bonus content is behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit:

Today’s issue is prompted by a new emergency application that has been filed by the Alliance Defending Freedom and the State of Idaho—asking the justices to limit the scope of a district court injunction that had barred Idaho from enforcing its ban on gender-affirming medical care for transgender minors. There’s a lot to say about the underlying merits questions presented in the case, and also the narrower procedural question that the emergency application raises (about whether/when injunctions can and should bar defendants from acting against non-plaintiffs—effectively the broader debate over so-called, but mis-named, “nationwide” injunctions).

But my focus is on a different issue: This is the second major pending dispute before the Court in which ADF is serving at least as co-counsel on behalf of the State of Idaho, along with the EMTALA/abortion cases in which the Court is set to hear argument in April. And although it’s worth conceding that my reaction may be colored at least to some degree by my general disagreement with ADF’s agenda, it seems just as worth exploring the potential problems with having states represented by any special interest groups like ADF (as opposed to private lawyers) in civil litigation, especially before the Supreme Court.

Indeed, as I explain below the fold, many of the formal and informal ways in which states are privileged as litigants turn on the view that states are representing the interests of all of their residents—and are thus entitled to the “special solicitude” due to sovereign actors. If states are, instead, simply vehicles through which private interest groups can litigate their own causes, that might justify rethinking at least some of those privileges—and treating states like any other non-governmental litigant that has an ideological axe to grind.

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