SCOTUSblog by Dan Schweitzer 5/17/2019
Those of you paying close attention to oral argument in the Supreme Court this term may have noticed something unusual. In three cases (Sturgeon v. Frost, Gamble v. United States and Tennessee Wine & Spirits Retailers Association v. Blair), one of the advocates was a state government attorney arguing on behalf of a state or group of states as amicus curiae. As discussed in my recent article for Green Bag 2D, “The Modern History of State Attorneys Arguing as Amici Curiae in the U.S. Supreme Court,†the court appears once again willing to hear from the states even when no state is a party.
The modern history of state attorneys arguing as amicus curiae in the Supreme Court began with then-Ohio State Solicitor Jeffrey Sutton’s 1997 argument in City of Boerne v. Flores. For a decade following that argument, stretching from the 1996 to the 2006 terms, the court routinely granted state motions for argument time as amicus. As my article details, based on my review of all the state motions during that time period, “the following ‘rule’ appeared to exist: The Court would grant a state attorney’s motion for argument time as amicus if (1) the state had the consent of the party it was supporting and (2) the United States was not arguing (as amicus or a party) on the side the state supported. That rule placed the states above all litigants in the Court other than the U.S. Solicitor General.â€
Starting in the 2007 term, however, the Supreme Court changed course. In that term, the court denied seven of the state attorneys’ eight argument motions, including four that satisfied the “rule.†For the next six terms, the states rarely sought amicus argument time and when they did, they were rebuffed by the court.
More:
https://www.scotusblog.com/2019/05/academic-highlight-the-states-arguing-as-amici-curiae-in-the-supreme-court/#more-286065
