State Attorneys General
Agents of Partisan Polarization
DOI:
https://doi.org/10.22439/asca.v57i1.7491Keywords:
courts, litigation, state attorneys general, standing to sue, public interestAbstract
Under the United States federalist system of government, each of the fifty states (plus the District of Columbia) has its own state attorney general (AG). As the chief legal officer of the state, the state AG is not only the top law enforcement official in the state but is also in control of all litigation entered into by the state government. The vast majority of the state AGs are independently elected state officials who can bring lawsuits in the “public interest,” free of the requirement that most litigants must have suffered some type of direct or indirect harm before they can sue (the legal term is “standing”).Through their partisan-motivated lawsuits against the federal government, state attorneys general are attempting to increase their role in federal constitutional interpretation and federal policymaking more generally, using both law and politics to do so. The danger is that these partisan-motivated lawsuits brought by the state AGs, and often won by them, are increasing the perception that American judges are merely partisan actors in black robes who are working in collusion with other partisan governmental agents to further a partisan agenda. These lawsuits are contributing to the decreasing trust that the American public has in its federal courts, and especially in the US Supreme Court.References
“About DAGA.” Democratic Attorneys General Association, https://dems.ag/about-daga/.
“About RAGA.” Republican Attorneys General Association, https://republicanags.com/about/.
“Appointing State Attorneys General: Evaluating the Unbundled State Executive.” Note. Harvard Law Review, vol. 127, no. 3, 2014, pp. 973-94.
“Attorney General Office Characteristics.” National Association of Attorneys General, https://www.naag.org/news-resources/research-data/attorney-general-office-characteristics/.
Balkin, Jack M. “Bush v. Gore and the Boundary between Law and Politics.” Yale Law Journal, vol. 110, no. 8, 2001, pp. 1407-58. https://doi.org/10.2307/797581.
Balkin, Jack M., and Sanford Levinson. “Understanding the Constitutional Revolution.” Virginia Law Review, vol. 87, no. 6, 2001, pp. 1045-1109. https://doi.org/10.2307/1073949.
Baum, Lawrence A. Ideology in the Supreme Court. Princeton University Press, 2017. https://doi.org/10.1515/9781400885367.
---. The Supreme Court. 12th ed., CQ Press, 2015.
Bickel, Alexander M. The Least Dangerous Branch of Government: The Supreme Court at the Bar of Politics. Yale University Press, 1962.
Biskupic, Joan. Nine Black Robes: Inside the Supreme Court's Drive to the Right and Its Historic Consequences. HarperCollins, 2023.
Blocher, Joseph. “Popular Constitutionalism and the State Attorneys General.” Harvard Law Review Forum, vol. 122, 2011, pp. 108-15.
Bonica, Adam, and Maya Sen. The Judicial Tug of War: How Lawyers, Politicians, and Ideological Incentives Shape the American Judiciary. Cambridge University Press, 2021. https://doi.org/10.1017/9781108894005.
Brown, Esther Lucile. Lawyers, Law Schools, and the Public Service. Russell Sage Foundation, 1948.
Clayton, Cornell W. “Law, Politics and New Federalism: State Attorneys General as National Policymakers.” The Review of Politics, vol. 56, no. 3, pp. 525-53. https://doi.org/10.1017/S0034670500018945.
Copeland, Joseph. “Favorable Views of Supreme Court Remain Near Historic Low.” Pew Research Center Reports, Aug. 8, 2024, https://www.pewresearch.org/short-reads/2024/08/08/favorable-views-of-supreme-court-remain-near-historic-low/.
Corbin, Edwin. Court Over Constitution: A Study of Judicial Review as an Instrument of Popular Government. Peter Smith, 1938.
Davis, Seth. “The New Public Standing.” Stanford Law Review, vol. 71, no. 5, 2019, pp. 1229-1304.
Derthick, Martha A. Up in Smoke: From Legislation to Litigation in Tobacco Politics. 3rd ed., CQ Press, 2011. https://doi.org/10.4135/9781483387673.
Devins, Neal, and Saikrishna Bangalore Prakash. “Fifty States, Fifty Attorneys General, and Fifty Approaches to the Duty to Defend.” Yale Law Journal, vol. 124, no. 6, 2015, pp. 2100-2187.
Dishman, Elysa M. “Generals of the Resistance: Multistate Actions and Nationwide Injunctions.” Arizona State Law Journal, vol. 54, no. 2, 2022, pp. 359-418.
Earley, Mark L. “‘Special Solicitude’: The Growing Power of State Attorneys General.” University of Richmond Law Review, vol. 52, no. 3, 2018, pp. 561-67.
Eulau, Heinz, and John D. Sprague. Lawyers in Politics: A Study in Professional Convergence. Bobbs Merrill, 1964.
Feldman, Adam, and Jake Truscott. “O’Connor & The Court: Breaking the Supreme Court’s Glass Ceiling.” Empirical SCOTUS. Dec. 4, 2023, https://empiricalscotus.com/2023/12/04/oconnor-and-the-court/.
Fisher, Louis. Constitutional Dialogues: Interpretation as Political Process. Princeton University Press, 1988. https://doi.org/10.1515/9781400859573.
---. Reconsidering Judicial Finality: Why the Supreme Court is Not the Last Word on the Constitution. University Press of Kansas, 2019.
Fisher, Louis, and David Gray Adler. American Constitutional Law. 7th ed., Carolina Academic Press, 2007.
Friedman, Barry. “Dialogue and Judicial Review.” Michigan Law Review, vol. 91, no. 4, 1993, pp. 577-682. https://doi.org/10.2307/1289700.
Goodman, J. David. “Appeals Court Keeps Block on Texas Migrant Arrest Law.” The New York Times, March 27, 2024, https://www.nytimes.com/2024/03/27/us/texas-migrant-law-appeals-court.html.
Green, Philip. “Keeping Them Honest: How State Attorneys General Use Multistate Litigation to Exact Meaningful Oversight Over Administrative Agencies in the Trump Era.” Administrative Law Review, vol. 71, no. 1, 2019, pp. 251-75.
Gross, Norman, ed. America's Lawyer Presidents: From Law Office to Oval Office. Northwestern University Press, 2004.
Hardy, Benjamin. “Judge Dismisses Arkansas from Tim Griffin's Gun Show Loophole Lawsuit, Transfers Case to Kansas.” Arkansas Times, May 24, 2024, https://arktimes.com/arkansas-blog/2024/05/24/judge-dismisses-arkansas-from-tim-griffins-gun-show-loophole-lawsuit-transfers-case-to-kansas.
Hessick, Andrew, and William P. Marshall. “State Standing to Constrain the President.” Chapman Law Review, vol. 21, no. 1, 2018, pp. 83-110.
Johnstone, Anthony. “A State Is a ‘They,’ Not an ‘It’: Intrastate Conflicts in Multistate Challenges to the Affordable Care Act.” Brigham Young University Law Review, vol. 2019, no. 6, 2019, pp. 1471-1510.
Kritzer, Herbert M. “The Impact of Bush v. Gore on Public Perceptions and Knowledge of the Supreme Court.” Judicature, vol. 85, no. 1, 2001, pp. 32-38.
Lemos, Margaret H., and Ernest A. Young. “State Public-Law Litigation in an Age of Polarization.” Texas Law Review, vol. 97, no. 1, pp. 43-123.
Levinson, Sanford. “Return of Legal Realism.” The Nation, Dec. 22, 2000.
Lindquist, Stephanie A., and Pamela C. Corley. “National Policy Preferences and Judicial Review of State Statutes at the United States Supreme Court.” Publius: The Journal of Federalism, vol. 43, no. 2, 2013, pp. 151-78. https://doi.org/10.1093/publius/pjs044.
Liptak, Adam. “Student Load Case Before Supreme Court Poses Pressing Question: Who Can Sue?” The New York Times, Feb. 26, 2023, https://www.nytimes.com/2023/02/26/us/politics/biden-student-loans-supreme-court.html.
Marimow, Ann E., and David Nakamura. “Trump Asks Supreme Court to Allow Birthright Citizenship Ban in Some States.” The Washington Post, March 13, 2025, https://www.washingtonpost.com/politics/2025/03/13/supreme-court-birthright-citizenship-trump/.
Marshall, William P. “Break Up the Presidency? Governors, State Attorneys General, and Lessons from the Divided Executive.” Yale Law Journal, vol. 115, no. 9, 2006, pp. 2446-79. https://doi.org/10.2307/20455702.
Mather, Lynn. “The Politics of Litigation by State Attorneys General: Introduction to Mini-Symposium.” Law and Policy, vol. 25, no. 4, 2003, pp. 425-28. https://doi.org/10.1111/j.0265-8240.2003.00157.x.
---. “Theorizing about Trial Courts: Lawyers, Policymaking, and Tobacco Litigation.” Law & Social Inquiry, vol. 23, no. 4, 1998, pp. 897-940. https://doi.org/10.1086/492664.
Maveety, Nancy. Queen's Court: Judicial Power in the Rehnquist Era. University Press of Kansas, 2008. https://doi.org/10.1353/book.134686.
McQuire, Kevin T. The Supreme Court Bar: Legal Elites in the Washington Community. University of Virginia Press, 1993.
Meyer, Timothy. “Federalism and Accountability: State Attorneys General, Regulatory Litigation, and the New Federalism.” California Law Review, vol. 95, no. 3, 2007, pp. 885-914.
Miller, Mark C. The High Priests of American Politics: The Role of Lawyers in American Political Institutions. University of Tennessee Press, 2002.
---. Judicial Politics in the United States. Routledge, 2014.
---. “State Attorneys General, Political Lawsuits, and their Collective Voice in the Inter-Institutional Constitutional Dialogue.” Journal of Legislation, vol. 48, no. 1, 2021, pp. 1-30.
Mueller, Julia. “Democratic AGs Rush to Form Line of Defense Against Trump.” The Hill, Nov. 17, 2024, https://thehill.com/homenews/state-watch/4993685-democratic-attorneys-general-ready-trump/.
Nakamura, David, and Silvia Foster-Frau. “States, Civil Rights Groups Sue to Stop Trump's Birthright Citizenship Order.” The Washington Post, Jan. 21, 2025, https://www.washingtonpost.com/immigration/2025/01/20/trump-birthright-citizenship-immigrants/.
Nolette, Paul. Federalism on Trial: State Attorneys General and National Policymaking in Contemporary America. University Press of Kansas, 2015. https://doi.org/10.1353/book39127.
Patterson, Shawn, Matt Levendusky, Ken Winneg, and Kathleen Hall Jamieson. “The Withering of Public Confidence in the Courts.” Judicature, vol. 108, no. 1, 2024, pp. 23-33.
Peretti, Terri Jennings. In Defense of a Political Court. Princeton University Press, 1999.
https://doi.org/10.1515/9781400823352.
---. Partisan Supremacy: How the GOP Enlisted Courts to Rig America's Election Rules. University Press of Kansas, 2020.
Provost, Colin. “When is AG Short for Aspiring Governor? Ambition and Policy Making Dynamics in the Office of State Attorney General.” Publius: The Journal of Federalism, vol. 40, no. 4, 2010, pp. 597-616. https://doi.org/10.1093/publius/pjp034.
---. “When to Befriend the court? Examining State Amici Curiae Participation Before the U.S. Supreme Court.” State Politics Quarterly, vol. 11, no. 1, 2011, pp. 4-27. https://doi.org/10.1177/1532440010387276
Robinson, Nick. “The Decline of the Lawyer-Politician.” Buffalo Law Review, vol. 65, no. 4, 2017, pp. 657-737.
Sabato, Larry J. “The AG: Attorney General as Aspiring Governor.” Rasmussen Reports, Apr. 23, 2010, https://www.rasmussenreports.com/public_content/political_commentary/commentary_by_larry_j_sabato/the_ag_attorney_general_as_aspiring_governor.
Schick, Avi, and Josh Turner. “Trump Administration Will Impact Agenda of State Attorneys General.” Reuters, Dec. 3, 2024. https://www.reuters.com/legal/legalindustry/trump-administration-will-impact-agenda-state-attorneys-general-2024-12-03/.
Schlesinger, Joseph A. “Lawyers and American Politics: A Clarified View.” Midwest Journal of Political Science, vol. 1, no. 1, 1957, pp. 26-39. https://doi.org/10.2307/2109010.
Segal, Jeffrey A., and Harold J. Spaeth. The Supreme Court and the Attitudinal Model Revisited. Cambridge University Press, 2002. https://doi.org/10.1017/CBO9780511615696.
Shaub, Jonathan David. “Delegation Enforcement by State Attorneys General.” University of Richmond Law Review, vol. 52, no. 1, 2018, pp. 653-89.
Shoaib, Alia. “Joe Biden Handed Gun Control Loss by Texas Judge.” Newsweek, May 20, 2024, https://www.newsweek.com/biden-gun-control-loss-texas-show-loophole-1902357.
Smith, Marissa A. “Politicization of State Attorneys General: How Partisanship is Changing the Role for the Worse.” Cornell Law Review, vol. 108, no. 2, 2023, pp. 517-41.
Solimine, Michael E. “State Amici, Collective Action, and the Development of Federalism Doctrine.” Georgia Law Review, vol. 46, no. 2, 2012, pp. 355-406.
Spill, Rorie L., Michael J. Licari, and Leonard Ray. “Taking on Tobacco: Policy Entrepreneurship and the Tobacco Litigation.” Political Research Quarterly, vol. 54, no. 3, 2001, pp. 605-22. https://doi.org/10.1177/106591290105400306.
State Litigation and AG Activity Database, https://attorneysgeneral.org/multistate-lawsuits-vs-the-federal-government/list-of-lawsuits-1980-present/.
Sunstein, Cass R., David Schkade, Lisa M. Ellman, and Andres Sawicki. Are Judges Political? An Empirical Analysis of the Federal Judiciary. Brookings Institution Press, 2006.
Tocqueville, Alexis de. Democracy in America. 1835. Translated by G. Lawrence and J. P. Mayer, Harper and Row, 1966.
Ulloa, Jazmine. “GOP-Led States, Claiming ‘Invasion,’ Push to Expand Power to Curb Immigration.” The New York Times, June 15, 2024, https://www.nytimes.com/2024/06/15/us/politics/republican-states-immigration-laws.html.
Whittington, Keith E. Political Foundations of Judicial Supremacy: The Presidency, The Supreme Court, and Constitutional Leadership in U.S. History. Princeton University Press, 2007. https://doi.org/10.1515/9781400827756.
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