In the New York Law Journal this week, LiJia Gong, interim Legal Director of Public Rights Project, writes, “As the October 2019 Supreme Court term approaches, be on the lookout for state attorneys general engaged in the art of ‘hidden nondefense’—in other words, filing amicus briefs that fail to disclose how their own state or local laws may be adversely impacted by the Supreme Court’s decision.”
Gong notes that hidden nondefense was identified by Professor Grumet and links to Professor Grumet’s Fordham Law Review article on the topic.
She outlines several cases before the U.S. Supreme Court in which state attorneys general have taken positions in amicus briefs without disclosing how their own state or local laws might be impacted by the Court’s ruling. Among the issues at stake are protections for LGBT individuals under Title VII.
Gong writes, “At Public Rights Project, we work with state and local governments to advance civil rights and environmental justice—and to protect workers and consumers—so when hidden nondefense undermines state protections for LGBT folks or workers, we are concerned. It is typically the job of state attorneys general—as the chief legal officers for their states—to defend state laws that are challenged in court, not to undermine their validity.”
She concludes the piece with a call to action: “As the level of government closest to the American people and the primary deliverers of safety net services, local governments have an important voice to offer on the impacts of law on their communities. … Now, more than ever, it’s important that they take action.”
In June, Professor Grumet published a SCOTUSblog piece on the problem of hidden nondefense. Her piece called for greater transparency in amicus briefs authored or signed by state attorneys general.