The Supreme Court, in the recently decided Berger case, waded into the issue of whether state legislatures, if they think a state official is not properly defending a policy, have the right to intervene.
The case came about because a pair of Republican legislators in North Carolina wanted to intervene to defend the state’s voter ID law because, in their opinion, the state’s Democratic Attorney General was not adequately defending it from NAACP attacks.
Wanting to keep the law on the books and not thinking the AG was doing enough, they desired to intervene, but were stymied. The court, with Justice Gorsuch writing the ruling, found that the legislators did have a right to intervene and defend the law.
Gorsuch, making that decision, noted that the case shows “how divided state governments sometimes warrant participation by multiple state officials in federal court.”
Adding to that, he notes that while there might sometimes be “a presumption of adequate representation”, and thus that legislators have no need to intervene because the AG will handle it, that presumption “is inappropriate when a duly authorized state agent seeks to intervene to defend a state law.”
He added that the state, here North Carolina, “has expressly authorized the legislative leaders to defend the State’s practical interests in litigation of this sort.”
The decision was 8-1 with only Sotomayor siding against it. She disagreed with Gorsuch’s comments about the presumption of inadequate representation in cases where state law authorizes officials to intervene. She also disagreed with the court’s perception of how the AG was handling the case inadequately.