Professor Lisa Grumet, Director of the Diane Abbey Law Institute for Children and Families, is a featured guest author on SCOTUSBlog.
Her new piece, “The need for transparency in state attorneys general amicus briefs,” describes a phenomenon Professor Grumet calls “hidden nondefense”—when state attorneys general (SAGs) take a position in a U.S. Supreme Court amicus brief that could undermine a law in the SAG’s own state, without disclosing the link.
“Hidden nondefense raises serious questions of accountability and separation of powers,” Professor Grumet writes in the post. “By appearing in front of the Supreme Court and attacking another state’s law, a SAG may seek and achieve results that could not be obtained politically within their own state.”
Her post is relevant to a case that could soon come under Supreme Court review: Klein v. Oregon Bureau of Labor and Industries. The case concerns enforcement of a state law prohibiting discrimination in public accommodations against a bakery that refused to provide a wedding cake to a same-sex couple. As Professor Grumet notes, nine states with their own anti-discrimination laws have joined an amicus brief that effectively supports the bakery’s right to discriminate. In the brief, none of the states disclosed the possible effects of the case outcome on their own public-accommodation laws.
The post is related to Professor Grumet’s recent Fordham Law Review article, which dives more extensively into the same topic.
Read Professor Grumet’s SCOTUSBlog post.