Cameron v. EMW Women's Surgical Center, P. S. C.

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(Slip Opinion) OCTOBER TERM, 2021 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
CAMERON, ATTORNEY GENERAL OF KENTUCKY v.
EMW WOMEN’S SURGICAL CENTER, P. S. C., ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
No. 20–601. Argued October 12, 2021—Decided March 3, 2022
EMW Women’s Surgical Center and two of its doctors filed a federal suit
seeking to enjoin enforcement of Kentucky House Bill 454, legislation
regulating the abortion procedure known as dilation and evacuation.
Named defendants in EMW’s lawsuit included two Commonwealth of-
ficials, the attorney general and the cabinet secretary for Health and
Family Services. EMW agreed to dismiss claims against the attorney
general without prejudice. The stipulation of dismissal specified that
the attorney general’s office reserved “all rights, claims, and defenses
. . . in any appeals arising out of this action” and agreed to be bound by
“any final judgment . . . subject to any modification, reversal or vaca-
tion of the judgment on appeal.” App. 28–30. The secretary remained
in the case and defended the challenged law. After a bench trial, the
District Court held that HB 454 unconstitutionally burdens a woman’s
right to an abortion and issued a permanent injunction against the
law’s enforcement.
The secretary filed a notice of appeal. While the appeal was
pending, Kentucky elected a new attorney general, petitioner Daniel
Cameron, and elected the former attorney general, Andrew Beshear,
Governor. Governor Beshear appointed a new secretary for Health
and Family Services who continued the defense of HB 454 on appeal.
Prior to oral argument before the Sixth Circuit, Attorney General
Cameron entered an appearance as counsel for the new secretary. A
divided Sixth Circuit panel affirmed the District Court’s judgment.
The secretary then informed the attorney general’s office that the sec-
retary would not file a petition for rehearing en banc or a petition for
a writ of certiorari challenging the Sixth Circuit panel’s decision. Two
2 CAMERON v. EMW WOMEN’S SURGICAL CENTER, P. S. C.
Syllabus
days later, the attorney general moved to withdraw as counsel for the
secretary and to intervene as a party on the Commonwealth’s behalf.
The secretary did not oppose that motion, but respondents did. The
attorney general also filed a petition for rehearing en banc within the
14-day deadline for an existing party to seek rehearing. The Sixth Cir-
cuit denied the attorney general’s motion to intervene. This Court
granted certiorari limited to the question whether the Sixth Circuit
should have permitted the attorney general to intervene.
Held: The Court of Appeals erred in denying the attorney general’s mo-
tion to intervene. Pp. 4–13.
(a) This Court has jurisdiction to consider whether the attorney gen-
eral’s motion to intervene should have been granted notwithstanding
respondents’ contention that the motion was jurisdictionally barred.
See Arbaugh v. Y & H Corp., 546 U. S. 500, 506. Respondents concede
that a court of appeals generally has jurisdiction to consider a non-
party’s motion to intervene in a pending appeal. But respondents as-
sert that a narrow subset of non-parties—those bound by the district
court judgment—must file a timely notice of appeal to obtain appellate
review and may not circumvent applicable jurisdictional time limits by
filing a motion to intervene after the deadline for filing a notice of ap-
peal has passed. Applying this theory, respondents contend that be-
cause the attorney general could have filed a notice of appeal but failed
to do so within the time allowed by law, his motion for intervention
should be treated like an untimely notice of appeal over which the
Sixth Circuit lacked jurisdiction. Pp. 4–7.
(1) No provision of law limits the jurisdiction of the courts of ap-
peals to entertain a motion for intervention filed by a non-party in this
way, even assuming that party can be bound by the judgment that is
appealed. Unless clear from its language, a statute or rule does not
impose a jurisdictional requirement. Henderson v. Shinseki, 562 U. S.
428, 439. Here, respondents cite no provision that deprives a court of
appeals of jurisdiction in the way they suggest, and no such supporting
language can be found in 28 U. S. C. §2107, Federal Rules of Appellate
Procedure 3 and 4, or any other provision of law. Pp. 5–6.
(2) This Court refuses to adopt what would essentially be a cate-
gorical claims-processing rule barring consideration of the attorney
general’s motion. When a non-party enters into an agreement to be
bound by a judgment in accordance with the agreement’s terms, it is
hard to see why the non-party should be precluded from seeking inter-
vention on appeal if the agreement preserves that opportunity. Here,
the attorney general reserved “all rights, claims, and defenses . . . in
any appeals arising out of this action.” That easily covers the right to
seek rehearing en banc and the right to file a petition for a writ of cer-
tiorari. And that agreement makes clear that the judgment to which
Cite as: 595 U. S. ____ (2022) 3
Syllabus
the attorney general agreed to be bound was the judgment that
emerged after all appellate review concluded. Pp. 6–7.
(b) Turning to the question whether the Court of Appeals properly
denied the attorney general’s motion to intervene, the Court notes that
no statute or rule provides a general standard to apply in deciding
whether intervention on appeal should be allowed. Guided by the
“policies underlying intervention” in the district courts, Automobile
Workers v. Scofield, 382 U. S. 205, 217, n. 10, including the legal “in-
terest” that a party seeks to “protect” through intervention on appeal,
Fed. Rule Civ. Proc. 24(a)(2), the Court concludes that the Sixth Cir-
cuit erred in denying the attorney general’s motion to intervene.
Pp. 7–13.
(1) Resolution of a motion for permissive intervention is commit-
ted to the discretion of the court before which intervention is sought,
see Automobile Workers, 382 U. S., at 217, n. 10; Fed. Rule Civ. Proc.
24(b)(1)(a). But a court fails to exercise its discretion soundly when it
“base[s] its ruling on an erroneous view of the law,” Cooter & Gell v.
Hartmarx Corp., 496 U. S. 384, 405, and that is what happened here.
The Sixth Circuit panel failed to account for the strength of the Ken-
tucky attorney general’s interest in taking up the defense of HB 454
when the secretary elected to acquiesce. A State “clearly has a legiti-
mate interest in the continued enforceability of its own statutes,”
Maine v. Taylor, 477 U. S. 131, 137, and a State’s opportunity to defend
its laws in federal court should not be lightly cut off. The importance
of ensuring that States have a fair opportunity to defend their laws in
federal court has been recognized by Congress. See 28 U. S. C.
§2403(b); Fed. Rule Civ. Proc. 24(a)(1). These provisions—even if not
directly applicable in this case because the secretary remained a
party—reflect the weighty interest that a State has in protecting its
own laws. Respect for state sovereignty must also take into account
the authority of a State to structure its executive branch in a way that
empowers multiple officials to defend its sovereign interests in federal
court. See Virginia House of Delegates v. Bethune-Hill, 587 U. S. ___,
___. The unusual course that this litigation took should not obscure
the important constitutional consideration at stake. Pp. 7–9.
(2) The panel also erred in its evaluation of the other factors that
bear on all applications for appellate intervention. The panel’s assess-
ment of the timeliness of the attorney general’s motion to intervene
was mistaken. While an important consideration, timeliness depends
on the circumstances, and the progression of the litigation is “not solely
dispositive.” NAACP v. New York, 413 U. S. 345, 366. Here, the most
important circumstance relating to timeliness is that the attorney gen-
eral sought to intervene “as soon as it became clear” that the Common-
wealth’s interests “would no longer be protected” by the parties in the
4 CAMERON v. EMW WOMEN’S SURGICAL CENTER, P. S. C.
Syllabus
case. United Airlines, Inc. v. McDonald, 432 U. S. 385, 394. Because
the attorney general’s need to intervene did not arise until the secre-
tary ceased defending the state law, the timeliness of his motion
should be assessed in relation to that point in time. NAACP v. New
York, 413 U. S. 345, distinguished. Pp. 10–12.
(3) The panel’s finding that granting intervention would prejudice
respondents was similarly flawed. While the attorney general’s re-
hearing petition pressed an issue (third-party standing) not raised in
the secretary’s appellate briefs, allowing intervention would not have
necessitated resolution of that issue. See, e.g., McDonald, 432 U. S.,
at 394. Moreover, respondents’ loss of its claimed expectations around
election of a Governor with a history of declining to defend abortion
restrictions is not cognizable as unfair prejudice in the sense relevant
here. Pp. 12–13.
831 Fed. Appx. 748, reversed and remanded.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and THOMAS, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. THOMAS,
J., filed a concurring opinion. KAGAN, J., filed an opinion concurring in
the judgment, in which BREYER, J., joined. SOTOMAYOR, J., filed a dis-
senting opinion.
Cite as: 595 U. S. ____ (2022) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–601
_________________
DANIEL CAMERON, ATTORNEY GENERAL OF
KENTUCKY, PETITIONER v. EMW WOMEN’S
SURGICAL CENTER, P. S. C., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[March 3, 2022]
JUSTICE ALITO delivered the opinion of the Court.
This case concerns a state attorney general’s attempt to
intervene in a federal appellate proceeding for the purpose
of defending the constitutionality of a state law. The issue
arose after a panel of the United States Court of Appeals
for the Sixth Circuit affirmed a decision holding a Kentucky
statute unconstitutional. The Kentucky official who had
been defending the law decided not to seek any further re-
view, but the Kentucky attorney general then moved to in-
tervene for the purpose of taking up the defense. The panel
denied that motion, but we granted review.
I
In April 2018, the Kentucky Legislature adopted House
Bill 454 (HB 454), which regulates the abortion procedure
known as dilation and evacuation. See Ky. Rev. Stat. Ann.
§§311.787(1)–(2) (West 2021). EMW Women’s Surgical
Center, a clinic that performs abortions, and two of its doc-
tors filed this action in Federal District Court and sought to
enjoin the enforcement of the new law. Their complaint
2 CAMERON v. EMW WOMEN’S SURGICAL CENTER, P. S. C.
Opinion of the Court
named four defendants, and two of these, the attorney gen-
eral and the cabinet secretary for Health and Family Ser-
vices, played pivotal roles in the events that followed. The
attorney general is a “[c]onstitutional State office[r]” who is
independently elected and serves until a successor is
elected and qualified. Ky. Const. §91. The secretary, on the
other hand, is appointed by the Governor and serves at his
pleasure. See Ky. Rev. Stat. Ann. §§11.065, 12.020, 63.080.
The plaintiffs agreed to the dismissal without prejudice
of the claims against the attorney general (at that time An-
drew Beshear) and one other defendant. 1 In agreeing to the
dismissal of these claims, the attorney general reserved “all
rights, claims, and defenses that [might] be available to
him” and “specifically reserve[d] all rights, claims, and de-
fenses relating to whether he is a proper party in this action
and in any appeals arising out of this action.” App. 28–30
(emphasis added). It was also stipulated “that any final
judgment in this action concerning the constitutionality of
HB 454 [would] be binding on the Office of the Attorney
General, subject to any modification, reversal or vacation of
the judgment on appeal.” Id., at 29–30 (emphasis added).
After the dismissal of these parties, the secretary re-
mained in the case and conducted the defense of the chal-
lenged law. 2 Following a bench trial, the District Court
held that HB 454 unconstitutionally burdens a woman’s
right to an abortion, EMW Women’s Surgical Center, P.S.C.
v. Meier, 373 F. Supp. 3d 807 (WD Ky. 2019), and it issued
a permanent injunction against the law’s enforcement. The
secretary then filed a notice of appeal. App. 19.
While the appeal was pending, Kentucky held its 2019
general elections. Andrew Beshear won the race for Gover-
nor, and petitioner Daniel Cameron was elected to replace
——————
1 The executive director of the Kentucky Board of Medical Licensure.
2 The fourth defendant was the Commonwealth’s attorney for the 30th
Judicial Circuit. He did not join the secretary’s appeal. EMW Women’s
Surgical Center, P.S.C. v. Friedlander, 960 F. 3d 785, 792 (CA6 2020).
Cite as: 595 U. S. ____ (2022) 3
Opinion of the Court
him as attorney general. On January 20, Governor Beshear
appointed a new secretary for Health and Family Services,
and the new secretary, represented by lawyers from the at-
torney general’s office, continued the defense of the chal-
lenged law. On January 28, one day before the appeal was
argued, Attorney General Cameron also entered an appear-
ance as counsel for the secretary. Id., at 82–83.
On June 2, 2020, a divided panel of the Sixth Circuit af-
firmed the District Court’s judgment. EMW Women’s Sur-
gical Center, P.S.C. v. Friedlander, 960 F. 3d 785, 790–812.
In dissent, Judge Bush argued that the plaintiffs lacked
third-party standing and criticized the majority for refusing
to wait for our decision on that issue in June Medical Ser-
vices L. L. C. v. Russo, 591 U. S. ___ (2020). Within a week
after the panel’s decision, the secretary informed the attor-
ney general’s office that he would not file a petition for re-
hearing en banc or a petition for a writ of certiorari, App.
153, 161, but the secretary agreed not to oppose the attor-
ney general if he moved to intervene for the purpose of seek-
ing further review. Id., at 153–154. Two days later, the
attorney general moved to withdraw as counsel for the sec-
retary and to intervene as a party on behalf of the Common-
wealth. Id., at 152. The secretary did not oppose that mo-
tion, but respondents did. Id., at 170–172. Five days later,
and within the 14-day deadline for an existing party to seek
rehearing, the attorney general tendered a petition for re-
hearing en banc. Id., at 210–227; Fed. Rules App. Proc.
35(c) and 40(a)(1).
By the same divided vote as before, the panel denied the
attorney general’s motion to intervene, citing Circuit prec-
edent under which intervention on appeal is judged by es-
sentially the same standard as intervention in district
court. See Blount-Hill v. Zelman, 636 F. 3d 278, 283 (CA6
2011). Applying that standard, the panel majority held,
first, that the attorney general’s motion was untimely be-
cause it was not filed until years of litigation had passed
4 CAMERON v. EMW WOMEN’S SURGICAL CENTER, P. S. C.
Opinion of the Court
and the panel had already decided the appeal; second, that
no “ ‘substantial legal interest’ ” was at stake because the
attorney general was pursuing “ ‘extraordinary’ ” forms of
review (rehearing en banc and certiorari) to which litigants
are not generally entitled; and third, that allowing inter-
vention would prejudice respondents because the attorney
general’s rehearing petition included an argument (that re-
spondents lacked third-party standing) that the secretary’s
briefs had not raised. 3 EMW Women’s Surgical Center,
P.S.C. v. Friedlander, 831 Fed. Appx. 748, 749–753 (CA6
2020).
We granted certiorari limited to the question whether the
Sixth Circuit should have permitted the attorney general to
intervene. 592 U. S. ___ (2021).
II
In considering this question, we begin with respondents’
contention that the attorney general’s motion to intervene
was jurisdictionally barred. Respondents never advanced
this argument below, and the Sixth Circuit did not consider
it. Nevertheless, we must assure ourselves that jurisdic-
tional requirements are met at all stages of the cases that
come before us for review, see Arbaugh v. Y & H Corp., 546
U. S. 500, 506 (2006).
A
Respondents’ argument is narrow and somewhat compli-
cated. While implicitly conceding that a court of appeals
generally has jurisdiction to consider a non-party’s motion
to intervene in a pending appeal, they claim that one nar-
row sub-set of non-parties is jurisdictionally barred: those
non-parties that are bound by the district court judgment.
——————
3 In the District Court, an attorney representing the secretary had
raised the issue during argument on the secretary’s motion for a directed
verdict, but the District Court refused to consider the issue on the ground
that it should have been raised much earlier. Tr. 105 (Nov. 15, 2018).
Cite as: 595 U. S. ____ (2022) 5
Opinion of the Court
Respondents’ argument goes like this. Non-parties who are
bound by a judgment can obtain appellate review by filing
a notice of appeal within the time prescribed by law. See
28 U. S. C. §2107(a); Fed. Rule App. Proc. 4(a)(1). These
time limits are jurisdictional, see Bowles v. Russell, 551
U. S. 205, 209 (2007); Torres v. Oakland Scavenger Co., 487
U. S. 312, 315 (1988); Griggs v. Provident Consumer Dis-
count Co., 459 U. S. 56, 61 (1982) (per curiam). And because
non-parties who are bound by a judgment can seek appel-
late review in this way, they cannot circumvent the juris-
dictional time limits for filing a notice of appeal by filing a
motion to intervene after the deadline for filing a notice of
appeal has passed.
Applying this theory, respondents contend that the Court
of Appeals lacked jurisdiction to entertain the attorney gen-
eral’s motion. Because the attorney general agreed to be
bound by the judgment, respondents maintain, he could
have filed a notice of appeal, but since he failed to do so
within the time allowed by law, his motion for intervention
should be treated like an untimely notice of appeal.
B
This argument fails for the simple reason that no provi-
sion of law limits the jurisdiction of the courts of appeals in
the way respondents suggest. We do not read a statute or
rule to impose a jurisdictional requirement unless its lan-
guage clearly does so. See Henderson v. Shinseki, 562 U. S.
428, 439 (2011) (a provision is not jurisdictional when its
language “provides no clear indication that Congress
wanted that provision to be treated as having jurisdictional
attributes”). Here, respondents cite no provision of law that
deprives a court of appeals of jurisdiction to entertain a mo-
tion for intervention that is filed by a non-party who is
bound by the judgment that is appealed. No such language
can be found in either 28 U. S. C. §2107, the Federal Rules
of Appellate Procedure 3 and 4, or any other provision of
6 CAMERON v. EMW WOMEN’S SURGICAL CENTER, P. S. C.
Opinion of the Court
law. We therefore see no basis for holding that petitioner’s
motion was jurisdictionally barred.
C
What respondents ask us to recognize is essentially a
mandatory claims-processing rule. Such rules are not ju-
risdictional, and if a non-jurisdictional argument was not
raised below, we generally will not consider it as an alter-
native ground for affirmance. See, e.g., Granfinanciera,
S. A. v. Nordberg, 492 U. S. 33, 38 (1989). In this case, how-
ever, we do not rest our decision on respondents’ failure to
raise this argument in the Court of Appeals. Even if that
argument had been preserved, we would not find it persua-
sive.
Assuming for the sake of argument that parties bound by
a judgment are generally permitted to appeal that judg-
ment, we do not think it follows that a party may do so re-
gardless of the ground on which the party is bound. Here,
respondents rely on the proposition that “[t]he Attorney
General, like any other ‘person who agrees to be bound by
the determination of issues in an action between others is
bound in accordance with the terms of his agreement.’ ”
Brief for Respondents 15 (quoting Taylor v. Sturgell, 553
U. S. 880, 893 (2008); emphasis added and alteration omit-
ted). And when a non-party is bound by a judgment for this
reason, it is hard to see why the non-party should be pre-
cluded from seeking intervention on appeal if the agree-
ment preserves that opportunity.
That is the situation here. In agreeing to be bound, the
attorney general specifically “reserve[d] all rights, claims,
and defenses . . . in any appeals arising out of this action,”
App. 28–29, and this language easily covers the right to
seek rehearing en banc and the right to file a petition for a
writ of certiorari. In addition, the stipulation of dismissal
made clear that the judgment to which the attorney general
agreed to be bound was the judgment that emerged after all
Cite as: 595 U. S. ____ (2022) 7
Opinion of the Court
appellate review concluded. See id., at 30 (judgment bind-
ing on attorney general’s office “subject to any modification,
reversal or vacation of the judgment on appeal”).
For these reasons, we refuse to adopt a categorical
claims-processing rule that bars consideration of the attor-
ney general’s motion. In doing so, we do not attempt to set
out a general rule governing the right of non-parties to ap-
peal or to move for appellate intervention.
III
Having concluded that neither a jurisdictional require-
ment nor a mandatory claims-processing rule barred con-
sideration of the attorney general’s motion, we turn to the
question whether the Court of Appeals properly denied that
motion. No statute or rule provides a general standard to
apply in deciding whether intervention on appeal should be
allowed. The Federal Rules of Appellate Procedure make
only one passing reference to intervention, and that refer-
ence concerns the review of agency action. See Rule 15(d);
Amalgamated Transit Union Int’l, AFL–CIO v. Donovan,
771 F. 2d 1551, 1553, n. 3 (CADC 1985). Without any rule
that governs appellate intervention, we have looked else-
where for guidance. Thus we have considered the “policies
underlying intervention” in the district courts, Automobile
Workers v. Scofield, 382 U. S. 205, 217, n. 10 (1965), includ-
ing the legal “interest” that a party seeks to “protect”
through intervention on appeal. Fed. Rule Civ. Proc.
24(a)(2).
A
In defending the Kentucky law, the attorney general as-
serts a substantial legal interest that sounds in deeper, con-
stitutional considerations. As we have observed, our Con-
stitution “ ‘spli[t] the atom of sovereignty.’ ” Alden v. Maine,
527 U. S. 706, 751 (1999) (quoting Saenz v. Roe, 526 U. S.
489, 504, n. 17 (1999)). “The Constitution limited but did
8 CAMERON v. EMW WOMEN’S SURGICAL CENTER, P. S. C.
Opinion of the Court
not abolish the sovereign powers of the States, which re-
tained ‘a residuary and inviolable sovereignty.’ ” Murphy v.
National Collegiate Athletic Assn., 584 U. S. ___, ___ (2018)
(slip op., at 14) (quoting The Federalist No. 39, p. 245 (C.
Rossiter ed. 1961)). Paramount among the States’ retained
sovereign powers is the power to enact and enforce any laws
that do not conflict with federal law. See U. S. Const., Art.
VI, §2. Therefore, a State “clearly has a legitimate interest
in the continued enforceability of its own statutes,” Maine
v. Taylor, 477 U. S. 131, 137 (1986), and a federal court
must “respect . . . the place of the States in our federal sys-
tem,” Arizonans for Official English v. Arizona, 520 U. S.
43, 75 (1997). This means that a State’s opportunity to de-
fend its laws in federal court should not be lightly cut off.
Respect for state sovereignty must also take into account
the authority of a State to structure its executive branch in
a way that empowers multiple officials to defend its sover-
eign interests in federal court. See Virginia House of Dele-
gates v. Bethune-Hill, 587 U. S. ___, ___ (2019) (slip op., at
5). In this case, although the secretary for Health and Fam-
ily Services apparently enjoyed the authority under state
law to defend the constitutionality of HB 454, the secretary
shared that authority with the attorney general. See Ky.
Rev. Stat. Ann. §15.020; see also Commonwealth ex rel.
Hancock v. Paxton, 516 S. W. 2d 865, 868 (Ky. 1974) (“There
is no question as to the right of the Attorney General to ap-
pear and be heard in a suit brought by someone else in
which the constitutionality of a statute is involved”). In-
deed, it is the attorney general who is deemed Kentucky’s
“chief law officer” with the authority to represent the Com-
monwealth “in all cases.” Ky. Rev. Stat. Ann. §§15.020(1),
(3).
The importance of ensuring that States have a fair oppor-
tunity to defend their laws in federal court has been recog-
nized by Congress. Under 28 U. S. C. §2403(b), when a
state law “affecting the public interest is drawn in question”
Cite as: 595 U. S. ____ (2022) 9
Opinion of the Court
in any “court of the United States” and neither the State
nor any state agency or officer is a party, the court must
notify the state attorney general, and the State must be al-
lowed to intervene. See also Fed. Rule Civ. Proc. 24(a)(1).
Even if this provision is not directly applicable in this case
because the secretary for Health and Family Services was
still a party when the intervention motion was filed, it nev-
ertheless reflects the weighty interest that a State has in
protecting its own laws. The way in which Kentucky di-
vides executive authority and the unusual course that this
litigation took should not obscure the important constitu-
tional consideration at stake. 4
Resolution of a motion for permissive intervention is com-
mitted to the discretion of the court before which interven-
tion is sought, see Automobile Workers, 382 U. S., at 217,
n. 10; Fed. Rule Civ. Proc. 24(b)(1)(a). But a court fails to
exercise its discretion soundly when it “base[s] its ruling on
an erroneous view of the law,” Cooter & Gell v. Hartmarx
Corp., 496 U. S. 384, 405 (1990), and that is what happened
here. The Sixth Circuit panel failed to account for the
strength of the Kentucky attorney general’s interest in tak-
ing up the defense of HB 454 when the secretary for Health
and Family Services elected to acquiesce. 5
——————
4 JUSTICE KAGAN argues that the Court need not address the constitu-
tional basis for Kentucky’s interest in the defense of its laws, but that
interest was a primary focus of the briefs and oral argument. And in-
deed, JUSTICE KAGAN agrees that “a State has a significant interest in
enforcing its own laws.” Post, at 5 (opinion concurring in judgment).
Such an interest depends on States’ status as “separate sovereigns.”
Maine v. Taylor, 477 U. S. 131, 137 (1986).
5 The dissent argues that the Court of Appeals did not abuse its discre-
tion by denying the attorney general’s intervention motion because his
predecessor in office had argued that he had no interest in the litigation.
Post, at 5–6. The dissent argues that we should hold the attorney general
to that representation. But the Court of Appeals did not rely on this
argument, and for good reason. The attorney general was sued in his
role as a state official who could enforce HB 454, and the attorney general
had disclaimed any such enforcement authority. See Ex parte Young,
10 CAMERON v. EMW WOMEN’S SURGICAL CENTER, P. S. C.
Opinion of the Court
B
The panel also erred in its evaluation of the other factors
that bear on all applications for appellate intervention. The
panel found that the attorney general’s motion was not
timely because it came after years of litigation in the Dis-
trict Court and after the panel had issued its decision, but
its assessment of timeliness was mistaken. Timeliness is
an important consideration in deciding whether interven-
tion should be allowed, see, e.g., Fed. Rules Civ. Proc. 24 (a)
and (b)(1), but “[t]imeliness is to be determined from all the
circumstances,” and “the point to which [a] suit has pro-
gressed is . . . not solely dispositive,” NAACP v. New York,
413 U. S. 345, 365–366 (1973).
Here, the most important circumstance relating to time-
liness is that the attorney general sought to intervene “as
soon as it became clear” that the Commonwealth’s interests
“would no longer be protected” by the parties in the case.
United Airlines, Inc. v. McDonald, 432 U. S. 385, 394
(1977). Our decision in McDonald addressed a similar sit-
uation. There, a member of a putative plaintiff class moved
to intervene for the purpose of appealing the District
Court’s denial of class certification. Id., at 396. The District
Court denied that request because the class member had
not “seen fit to come in here and seek any relief from this
Court in any way” during “five years” of litigation. Id., at
390. We held, however, that the motion was timely because
it was filed soon after the movant learned that the class
representatives would not appeal.
The same logic applies here. The attorney general sought
to intervene two days after learning that the secretary
would not continue to defend HB 454. The motion was also
——————
209 U. S. 123, 159–160 (1908). The attorney general now seeks to inter-
vene not to defend a right to exercise enforcement powers under HB 454,
but in his role as the Commonwealth’s “chief law officer,” Ky. Rev. Stat.
Ann. §15.020(1), who has the authority to defend Kentucky’s interests in
federal court when no other official is willing to do so.
Cite as: 595 U. S. ____ (2022) 11
Opinion of the Court
filed within a week after the Sixth Circuit issued its deci-
sion and within the 14-day time limit for petitioning for re-
hearing en banc. Although the litigation by that time had
proceeded for years, that factor is not dispositive. The at-
torney general’s need to seek intervention did not arise un-
til the secretary ceased defending the state law, and the
timeliness of his motion should be assessed in relation to
that point in time.
Respondents argue that the attorney general should have
realized as soon as Governor Beshear took office that his
secretary for Health and Family Services might abandon
the defense of HB 454. Respondents state that Governor
Beshear ran “on a pro-choice platform and . . . had repeat-
edly withdrawn from the defense of abortion restrictions
when serving as Attorney General.” Brief for Respondents
28. But the new secretary whom he appointed after taking
office as Governor had continued to defend the law on ap-
peal, and respondents do not explain why the attorney gen-
eral should have known that the secretary would change
course after the panel’s decision was handed down.
In arguing to the contrary, respondents point to our deci-
sion in NAACP v. New York, 413 U. S. 345, but they mis-
read that decision. In that case, several parties unsuccess-
fully sought to intervene in a Voting Rights Act case after
the United States, which had brought the action, consented
to the entry of judgment in favor of the defendant. The Dis-
trict Court found that this request was untimely, and we
affirmed, noting that the United States’ answer to the com-
plaint, which had been filed almost a month earlier, had
revealed that the Government “was without information
with which it could oppose the motion for summary judg-
ment.” Id., at 367. That response, we concluded, should
have alerted the would-be intervenors about the United
States’ likely course of action. Ibid. We also observed,
among other things, that intervention had “the potential for
seriously disrupting” the approaching elections. Id., at
12 CAMERON v. EMW WOMEN’S SURGICAL CENTER, P. S. C.
Opinion of the Court
368–369.
The situation here is starkly different. As discussed, the
attorney general’s motion was timely, and intervention
would not have produced anything like the disruption that
the Court cited in NAACP v. New York. Thus, the panel
was mistaken in finding that the attorney general’s motion
was untimely.
C
The panel’s finding on prejudice was similarly flawed.
The panel argued that intervention would prejudice re-
spondents because the attorney general’s rehearing peti-
tion pressed an issue (third-party standing) that had not
been raised in the secretary’s briefs. 831 Fed. Appx., at 751,
752. But the lack of third-party standing was not the only
argument advanced in the rehearing petition, App. 221–
227, and in any event, allowing the attorney general to in-
tervene would not have necessitated that the third-party
standing issue be entertained. If the secretary for Health
and Family Services had not retired from the field, he could
have raised that same argument in a petition for rehearing
or in a petition for certiorari. In that event, the relevant
court (the Sixth Circuit in deciding whether to grant en
banc review and this Court in deciding whether to grant
certiorari) could have considered whether the third-party
standing argument should be considered despite the secre-
tary’s failure to raise the issue at an earlier point in the
litigation. That the issue was raised in the attorney gen-
eral’s rehearing petition, as opposed to one filed by the sec-
retary, was immaterial.
Our decision in McDonald illustrates the panel’s error.
In that case, we held that the defendant was not “unfairly
prejudiced simply because an appeal on behalf of putative
class members was brought by [an unnamed class member]
rather than by one of the original” parties, 432 U. S., at 394.
The situation here is similar.
Cite as: 595 U. S. ____ (2022) 13
Opinion of the Court
Respondents advance one additional argument on the is-
sue of prejudice. They claim that intervention would un-
fairly deprive them of a “reasonable expectation” stemming
from Governor Beshear’s election. Brief for Respondents
31. Respondents contend that Governor Beshear had a
“history of refusing to defend abortion restrictions” and that
they therefore reasonably thought that the secretary, who
was appointed by the Governor, would not pursue “extraor-
dinary forms of relief if they prevailed in their appeal.”
Ibid.The loss of this sort of claimed expectation does not
amount to unfair prejudice in the sense relevant here. Re-
spondents may have hoped that the new Governor would
appoint a secretary who would give up the defense of HB
454, but they had no legally cognizable expectation that the
secretary he chose or the newly elected attorney general
would do so before all available forms of review had been
exhausted.
* * *
For these reasons, the Court of Appeals erred in denying
the attorney general’s motion to intervene. That court’s
judgment is reversed, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
Cite as: 595 U. S. ____ (2022) 1
THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–601
_________________
DANIEL CAMERON, ATTORNEY GENERAL OF
KENTUCKY, PETITIONER v. EMW WOMEN’S
SURGICAL CENTER, P. S. C., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[March 3, 2022]
JUSTICE THOMAS, concurring.
I join the opinion of the Court. I write to address another
reason why respondents and their amici err in maintaining
that the Court of Appeals lacked jurisdiction to consider At-
torney General Cameron’s motion to intervene.
As the Court explains, respondents now argue that Attor-
ney General Cameron is jurisdictionally barred from inter-
vening in the appeal because his predecessor, then-Attor-
ney General Beshear, stipulated as a condition of his
dismissal that the Kentucky attorney general’s office would
be bound by the District Court’s final judgment. According
to respondents, that stipulation required the attorney gen-
eral to timely notice an appeal consistent with Federal
Rules of Appellate Procedure 3 and 4 if he wished to chal-
lenge the District Court’s judgment on appeal. To allow in-
tervention in the appeal, respondents posit, would circum-
vent the jurisdictional requirements of Federal Rules of
Appellate Procedure 3 and 4.
The Court rightly rejects respondents’ novel argument
because the attorney general’s stipulation preserved his of-
fice’s right to participate in the appeal. See ante, at 6–7.
But in addition to the infirmity the Court identifies, re-
spondents’ jurisdictional argument suffers from another,
2 CAMERON v. EMW WOMEN’S SURGICAL CENTER, P. S. C.
THOMAS, J., concurring
more basic flaw: Rules 3 and 4 permit only “parties” to ap-
peal a district court judgment, and the attorney general was
not a “party” to the judgment after he was dismissed from
the litigation.
Federal Rules of Appellate Procedure 3(a)(1) and
4(a)(1)(A) together require that any appeals from a district
court judgment be pursued by filing a notice of appeal
within 30 days after entry of the judgment. See also 28
U. S. C. §2107(a). We have described this requirement as
“jurisdictional.” See Torres v. Oakland Scavenger Co., 487
U. S. 312, 315 (1988); see also Gonzalez v. Thaler, 565 U. S.
134, 147 (2012). We have also held that Rule 3(c)—requir-
ing, among other things, that the notice of appeal “specify
the party or parties taking the appeal,” Fed. Rule App. Proc.
3(c)(1)(A)—is likewise jurisdictional. See Torres, 487 U. S.,
at 314–318; Becker v. Montgomery, 532 U. S. 757, 765–766
(2001). Rule 3(c)(1)(A)’s requirement that the notice specify
the “party” taking the appeal reflects the “well settled” “rule
that only parties to a lawsuit, or those that properly become
parties, may appeal an adverse judgment.” Marino v. Ortiz,
484 U. S. 301, 304 (1988) (per curiam). For example, indi-
viduals who are “not parties to the underlying lawsuit” and
fail to intervene in the District Court cannot appeal a Dis-
trict Court’s judgment. Ibid. We are not at liberty to create
“exceptions to this general rule,” even when “the nonparty
has an interest that is affected by the trial court’s judg-
ment.” Ibid. (internal quotation marks omitted).
Here, the attorney general was not a “party” to the Dis-
trict Court’s final judgment. Then-Attorney General
Beshear was originally a “party” to this suit because he was
named as a defendant in the complaint. But the District
Court later dismissed Attorney General Beshear’s office
from the litigation in May 2018—about a year before final
judgment. A “party” dismissed from a lawsuit is no longer
a “party” to it after his dismissal. Just as “intervention is
the requisite method for a nonparty to become a party to a
Cite as: 595 U. S. ____ (2022) 3
THOMAS, J., concurring
lawsuit,” United States ex rel. Eisenstein v. City of New
York, 556 U. S. 928, 933 (2009), dismissal is the quintessen-
tial (if not only) method for a party to become a nonparty,
see, e.g., 67A C. J. S., Parties §86 (2013) (“Once a person is
dismissed from a lawsuit, he or she is generally no longer a
party to it”).
One need hardly look beyond the case caption to see how
dismissal ended the attorney general’s status as a “party”
to the litigation. To be sure, case captions are “ ‘not deter-
minative as to the identity of the parties to the action.’ ” Ei-
senstein, 556 U. S., at 935 (quoting 5A C. Wright & A. Mil-
ler, Federal Practice and Procedure §1321, p. 388 (3d ed.
2004)). But they can be instructive, given that “ ‘[t]he des-
ignation of persons as parties is usually made in the caption
of the summons or complaint.’ ” Devlin v. Scardelletti, 536
U. S. 1, 15 (2002) (Scalia, J., dissenting) (quoting Restate-
ment (Second) of Judgments §34, Comment a, Reporter’s
Note, p. 347 (1980)). Here, because respondents initially
named then-Attorney General Beshear as the lead defend-
ant in their complaint, the District Court’s orders originally
captioned the defendants as “ANDREW G. BESHEAR,
et al.” E.g., App. 28. After the District Court dismissed the
attorney general on May 21, 2018, the court ordered the
clerk to modify the case caption to “reflect the remaining
properly named Defendants”: “Meier, et al.” Id., at 5, 7; see
also App. to Pet. for Cert. 104a (District Court final judg-
ment listing the defendants as “ADAM W. MEIER et al.”).
The District Court’s modification of the caption confirms
that when the court issued its judgment, the attorney gen-
eral was no longer a “party.”
Because the attorney general was not a “party” to the Dis-
trict Court’s final judgment, respondents’ jurisdictional ar-
gument necessarily fails. As a nonparty, the attorney gen-
eral could not notice an appeal under Rules 3 and 4. And
because he could not notice an appeal, he could not possibly
4 CAMERON v. EMW WOMEN’S SURGICAL CENTER, P. S. C.
THOMAS, J., concurring
have been obligated to do so, rather than pursue interven-
tion—“the requisite method for a nonparty to become a
party to a lawsuit.” Eisenstein, 556 U. S., at 933.
Respondents resist this conclusion and contend that the
attorney general remained a “party” because then-Attorney
General Beshear stipulated upon dismissal that “any final
judgment in this action . . . will be binding on the Office of
the Attorney General, subject to any modification, reversal
or vacation of the judgment on appeal.” App. 29–30. Re-
spondents’ argument has a veneer of plausibility only be-
cause of our decision in Devlin v. Scardelletti, 536 U. S. 1.
There, a majority of this Court held that a nonnamed mem-
ber of a certified class action was a “party” who could appeal
the approval of a settlement to which he objected. Id., at
10. Rejecting the settled bright-line rule that only a named
party may appeal a final judgment, the Court adopted a
vague, functionalist inquiry that determined “party” status
“based on context.” Ibid.Applying that test, Devlin held that “nonnamed class
members are parties to the proceedings in the sense of be-
ing bound by the [judgment],” and it was “th[at] feature of
class action litigation that require[d] that class members be
allowed to appeal the approval of a settlement.” Ibid. “To
hold otherwise,” the Court explained, “would deprive
nonnamed class members of the power to preserve their
own interests in a settlement that will ultimately bind
them.” Ibid.I joined Justice Scalia’s dissent in Devlin, which reiter-
ated that “ ‘parties’ to a judgment are those named as
such—whether as the original plaintiff or defendant in the
complaint giving rise to the judgment, or as ‘one who
though not an original party becomes a party by interven-
tion, substitution, or third-party practice.’ ” 536 U. S., at 15(quoting Karcher v. May, 484 U. S. 72, 77 (1987); alterations
omitted). The Devlin Court’s holding was, and is, “contrary”
to that “well-established law.” 536 U. S., at 150. To reason,
Cite as: 595 U. S. ____ (2022) 5
THOMAS, J., concurring
as Devlin did, that merely being bound by a judgment trans-
formed a nonnamed class member into a “party,” surely
“c[a]me as news to law students everywhere.” Id., at 18; see
also Marino, 484 U. S., at 304 (previously rejecting that in-
dividuals become “parties” merely because they have “an
interest that is affected by the trial court’s judgment”). Af-
ter all, “[t]here are any number of persons who are not par-
ties to a judgment yet are nonetheless bound by it.” Devlin,
536 U. S., at 18. For example, as pertinent here, when “ ‘[a]
person agrees to be bound by the determination of issues in
an action between others,’ ” we call application of claim or
issue preclusion to that person “nonparty preclusion” pre-
cisely because agreeing to be bound by a judgment does not
alone make one a “party” to it. Taylor v. Sturgell, 553 U. S.
880, 893 (2008) (quoting Restatement (Second) of Judg-
ments §40, at 390; emphasis added).
Devlin was demonstrably erroneous for the reasons set
forth in Justice Scalia’s dissent, and we should overrule it
in an appropriate case. That said, Devlin does not control
here. Several years after Devlin, in Eisenstein, we unani-
mously reiterated the principle that “[a] ‘party’ to litigation
is ‘[o]ne by or against whom a lawsuit is brought.’ ” 556
U. S., at 933 (quoting Black’s Law Dictionary 1154 (8th ed.
2004)). Relying on Devlin’s reasoning, the petitioner there
argued that the United States must be a “party” within the
meaning of Rule 4(a)(1)(B) because the Government is
“bound by the judgment” in all actions under the False
Claims Act “regardless of its participation in the case.” 556
U. S., at 936. Consistent with our pre-Devlin cases, we re-
iterated that this fact was “not determinative” because
“nonparties may be bound by a judgment for a host of dif-
ferent reasons,” 556 U. S., at 936, none of which suffices to
transform them into parties. We distinguished Devlin’s
contrary reasoning by invoking the specific “class-action na-
ture of the suit” there, 556 U. S., at 934, n. 3, essentially
cabining that precedent to class actions alone. And, true to
6 CAMERON v. EMW WOMEN’S SURGICAL CENTER, P. S. C.
THOMAS, J., concurring
Eisenstein, we have not once relied on Devlin outside the
class-action context. See United States v. Sanchez-Gomez,
584 U. S. ___, ___ (2018) (slip op., at 6); Standard Fire Ins.
Co. v. Knowles, 568 U. S. 588, 593 (2013); Smith v. Bayer
Corp., 564 U. S 299, 313–315 (2011). Devlin is therefore an
aberration from our otherwise consistent view that only a
named party may file a notice of appeal under Rules 3 and
4. And because this case does not involve a class action,
Devlin has no precedential force.
* * *
The Office of the Kentucky Attorney General was not a
named “party” to the District Court’s final judgment. The
attorney general, accordingly, could not notice an appeal
from that judgment under Rules 3 and 4. And because the
attorney general could not appeal the District Court’s judg-
ment, Attorney General Cameron moved to intervene and
pursue “the requisite method for a nonparty to become a
party to a lawsuit.” Eisenstein, 556 U. S., at 933. Far from
evading the jurisdictional requirements of Rules 3 and 4,
Cameron’s motion to intervene was his only legitimate op-
tion to both comply with those Rules and participate in the
appeal as a party. For this reason, as well as those given in
the opinion of the Court, respondents’ jurisdictional argu-
ment fails.
Cite as: 595 U. S. ____ (2022) 1
KAGANK
, J.,
AGAN , J., concurring
concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–601
_________________
DANIEL CAMERON, ATTORNEY GENERAL OF
KENTUCKY, PETITIONER v. EMW WOMEN’S
SURGICAL CENTER, P. S. C., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[March 3, 2022]
JUSTICE KAGAN, with whom JUSTICE BREYER joins, con-
curring in the judgment.
I agree with the Court that the Sixth Circuit should have
allowed the attorney general to intervene in this suit after
another state official ceased defending the challenged Ken-
tucky law. And my reasons for reaching that conclusion
partly overlap with the Court’s. But I would differently
frame and respond to the serious threshold issue that re-
spondent EMW raises. I also see no need to rely on “consti-
tutional considerations” to resolve the intervention ques-
tion before us. Ante, at 7 (opinion of the Court).
I
No jurisdictional rule, the Court and I agree, directly bars
the attorney general’s intervention here. The rule EMW
relies on requires a losing party to file a notice of appeal
within 30 days of the entry of judgment. See 28 U. S. C.
§2107(a); Fed. Rule App. Proc. 4(a)(1)(A). This Court has
made clear that the timely-appeal rule is jurisdictional.
See, e.g., Bowles v. Russell, 551 U. S. 205, 209 (2007). So if
a party (or a non-party having an equivalent right to ap-
peal) files an appeal on the 31st day after judgment, the
appellate court lacks jurisdiction. But here the attorney
general did not file such a late appeal. He instead moved
2 CAMERON v. EMW WOMEN’S SURGICAL CENTER, P. S. C.
KAGAN, J., concurring in judgment
to intervene in an appeal timely brought by Kentucky’s sec-
retary for health (after the secretary decided to forgo en
banc or Supreme Court review). And the provisions setting
out the timely-appeal rule do not address that situation.
See ante, at 5–6.
The majority goes on to deny the existence of a “claims-
processing” rule preventing the attorney general’s interven-
tion, see ante, at 6–7, but I think that terminology mis-
placed and distracting. We often consider whether timing
requirements are “jurisdictional” rules or else “claims-pro-
cessing” rules. See, e.g., United States v. Kwai Fun Wong,
575 U. S. 402, 409–410 (2015). (The question comes up be-
cause only the latter may be waived or overcome by equita-
ble considerations; the former are absolute bars to enter-
taining a matter. See ibid.) But here we know the answer
to that frequent question. As just stated, the timely-appeal
rule—the only rule anyone thinks relevant—is jurisdic-
tional. There is not a claims-processing rule in sight. And
EMW nowhere suggests otherwise; it never asserts the ex-
istence of a claims-processing rule barring the attorney gen-
eral’s motion.
The argument EMW makes—and it is a serious one—
rests on the idea that litigants should not be allowed to use
intervention procedures to end-run jurisdictional rules.
Consider a hypothetical to illustrate the problem. Suppose
a party (or a non-party having a right to appeal) misses the
30-day deadline to file a notice of appeal from a judgment.
On the 31st day, he regrets his negligence and attempts to
intervene in another party’s appeal in the same case.
Should the appellate court allow the intervention? Our
precedent, along with common sense, suggests not—even
though the timely-appeal rule, as noted above, does not ad-
dress issues of intervention. That is because permitting in-
tervention there would effectively “vitiate[ ]” the “manda-
tory nature of the [appellate] time limits.” Torres v.
Cite as: 595 U. S. ____ (2022) 3
KAGAN, J., concurring in judgment
Oakland Scavenger Co., 487 U. S. 312, 315 (1988). Or oth-
erwise said, granting intervention would enable the party
to circumvent those limits, by awarding him the “equiva-
lent” of more “time for filing a notice of appeal.” Ibid.; see
Hutchinson v. Pfeil, 211 F. 3d 515, 519 (CA10 2000)
(“[I]ntervention is not a means to escape the consequences
of noncompliance” with the jurisdictional timely-appeal
rule). That is the essence of EMW’s objection. EMW con-
tends that the attorney general, though a non-party, could
have appealed the District Court’s judgment because it
bound his office. But the attorney general chose at the time
not to appeal. He should not now be allowed, EMW says, to
sidestep the jurisdictional deadline he missed by means of
intervening. See Brief for Respondents 10, 15–16, 19–21.
But the anti-circumvention rationale for denying inter-
vention does not sensibly apply here because of the change
in circumstances between the time to appeal and the time
of the motion to intervene. Recall that the attorney general,
by agreeing early on to the dismissal of the claims against
him, effectively handed off defense of the challenged law to
the health secretary. See ante, at 2. After the District
Court ruled, the secretary continued to perform that func-
tion, appealing the court’s decision to strike down the law.
Assume here, as EMW argues, that the attorney general
also could have appealed.* Even if so, the attorney general
had no reason to take that step: The secretary was handling
the appeal, just as he had handled the trial court proceed-
ings. It was only once the Sixth Circuit ruled and the sec-
retary ceased defending the law—choosing not to seek en
——————
* That assumption is perfectly reasonable. The agreement of dismissal
made the District Court’s judgment binding on the attorney general’s of-
fice (subject to any later revision or reversal). See App. 29–30. And a
non-party bound by a judgment often has the same appeal rights as a
party. See Devlin v. Scardelletti, 536 U. S. 1, 7–8 (2002) (discussing
cases); C. Wright, A. Miller, & E. Cooper, 15A Federal Practice and Pro-
cedure §3902.1, pp. 186–189, n. 35 (2d ed. Supp. 2021) (same).
4 CAMERON v. EMW WOMEN’S SURGICAL CENTER, P. S. C.
KAGAN, J., concurring in judgment
banc or Supreme Court review—that the (now new) attor-
ney general had an urgent reason to rejoin the suit: If he
did not, the law would be invalidated. The motion to inter-
vene, then, was not an attempt to escape the consequences
of failing to adhere to appellate deadlines, as in the hypo-
thetical offered above. The motion was instead a response
to a major shift in the litigation, creating a new demand for
the attorney general’s participation. And that real-world
fact answers EMW’s argument. Granting the motion would
not countenance an end-run around the timely-appeal rule
by giving the attorney general a do-over. It would simply
recognize that only after the time for appeal had come and
gone had a need arisen for the attorney general to reenter
the suit.
II
With that threshold objection answered, the issue be-
comes how the factors bearing on intervention motions play
out. I agree with much of what the Court says on that issue
(and also with its view that the attorney general’s agree-
ment did not preclude his intervention). But I see no reason
to cast the analysis, even partially, in constitutional terms.
See ante, at 7–9. Our longstanding practice is to avoid un-
necessary discussion of constitutional questions. See, e.g.,
Ashwander v. TVA, 297 U. S. 288, 345–348 (1936)
(Brandeis, J., concurring). And contra the majority, no in-
vocation of, or lofty observations about, the Constitution are
here needed. The considerations governing intervention
motions—applying equivalently to any person seeking to
intervene, including the attorney general—show why the
Sixth Circuit went wrong in closing off the suit. See gener-
ally Fed. Rule Civ. Proc. 24.
Most fundamentally, the attorney general had a strong
reason for intervening. Once again, the secretary had de-
fended the challenged law as constitutional until the Sixth
Cite as: 595 U. S. ____ (2022) 5
KAGAN, J., concurring in judgment
Circuit ruled; but he then decided to abandon the argu-
ment. If the attorney general could not assume the defense,
and thus continue contesting EMW’s claim, Kentucky could
no longer enforce its statute. And it is of course true, as the
majority says, that a State has a significant interest in en-
forcing its own laws. See ante, at 8. As a practical matter,
then, the attorney general belonged in the suit, absent some
good cause to exclude him.
And as the Court concludes, no such cause was present.
See ante, at 10–13. The intervention motion, though com-
ing late in the suit, was still timely. The attorney general
intervened as soon as he had a reason to do so—more spe-
cifically, two days after he learned that the secretary would
no longer defend the challenged law. See United Airlines,
Inc. v. McDonald, 432 U. S. 385, 394 (1977) (holding that a
motion to intervene was timely because it was made “as
soon as it became clear” that the movant’s interests “would
no longer be protected” by existing parties). And the motion
was filed within the 14-day window for requesting an en
banc rehearing—so did nothing to delay the suit’s normal
progress. See Fed. Rules App. Proc. 35(c) and 40(a)(1). Nor
did the motion otherwise prejudice EMW. The attorney
general sought to pursue only the usual next steps of appel-
late review—what the secretary would have done had he
not ceased defending the law. Of course, EMW would have
preferred the secretary’s action to bring the case to an end.
But an unrealized gain of that kind does not count as a le-
gally cognizable harm. See McDonald, 432 U. S., at 394(holding that a litigant cannot claim “unfair[] prejudice[ ]”
when one person takes over an appeal from another). Noth-
ing, then, counterbalances the reasons for enabling the at-
torney general’s inclusion.
* * *
So I arrive, if via a somewhat different path, at the same
endpoint as the Court. In my view, the attorney general’s
6 CAMERON v. EMW WOMEN’S SURGICAL CENTER, P. S. C.
KAGAN, J., concurring in judgment
motion to intervene was not an end-run around the timely-
appeal rule. And with that issue out of the way, this is a
textbook case for intervention. The Sixth Circuit should
have allowed the attorney general to step into the litigation
to defend the challenged law.
Cite as: 595 U. S. ____ (2022) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–601
_________________
DANIEL CAMERON, ATTORNEY GENERAL OF
KENTUCKY, PETITIONER v. EMW WOMEN’S
SURGICAL CENTER, P. S. C., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[March 3, 2022]
JUSTICE SOTOMAYOR, dissenting.
In every case, there must be a “point of time when litiga-
tion shall be at an end.” Browder v. Director, Dept. of Cor-
rections of Ill., 434 U. S. 257, 264 (1978) (internal quotation
marks omitted). To effectuate that endpoint, our legal sys-
tem requires parties to abide by representations made in a
lawsuit regardless of later regrets. In this case, the attor-
ney general of Kentucky stipulated to his own dismissal as
a party in the District Court and agreed to have another
official represent Kentucky’s interests. Only years later,
and after the Court of Appeals affirmed the District Court’s
judgment, did the attorney general ask the Court of Ap-
peals to allow him to return based on a position he had dis-
avowed when securing his dismissal earlier in the litiga-
tion. The Court of Appeals refused his request to intervene.
Generally, the decision whether to permit intervention in
a case is left to the “sound discretion” of the court in which
intervention is sought, as that court is the best positioned
to assess potential inefficiencies and unfairness that might
result. NAACP v. New York, 413 U. S. 345, 366 (1973). The
Court acknowledges that highly deferential standard, but
nonetheless bends over backward to accommodate the at-
torney general’s reentry into the case. I fear today’s deci-
sion will open the floodgates for government officials to
2 CAMERON v. EMW WOMEN’S SURGICAL CENTER, P. S. C.
SOTOMAYOR, J., dissenting
evade the consequences of litigation decisions made by their
predecessors of different political parties, undermining fi-
nality and upsetting the settled expectations of courts, liti-
gants, and the public alike. I respectfully dissent.
I
In March 2018, the Kentucky Legislature enacted
House Bill 454 (H. B. 454), which prohibits “dilation and
evacuation” abortions after 11 weeks of pregnancy except in
medical emergencies. Respondents, a clinic and two of its
physicians, challenged the law, contending that it violates
the Fourteenth Amendment by imposing an undue burden
on the right to previability abortion. Respondents
named four defendants in the complaint, including the at-
torney general of Kentucky and the interim secretary
of Kentucky’s Cabinet for Health and Family Services
(secretary). 1 Each was named in his official capacity. At
the time, Andrew Beshear, a Democrat, served as Ken-
tucky’s attorney general. The secretary served as part of
the administration of Governor Matt Bevin, a Republican.
Respondents sought a motion for a temporary restraining
order and preliminary injunction. In response, the attorney
general disclaimed responsibility for enforcing the law. The
attorney general explained that “H. B. 454 does not confer
upon the Attorney General the authority or duty to enforce
the provisions as enacted” and “does not provide the Attor-
ney General with any regulatory responsibility or other au-
thority to take any action.” Electronic Case Filing in No.
3:18–cv–00224 (WD Ky., May 8, 2018) (ECF), Doc. 42, p. 1.
He concluded that, as a result, “there is no act of the Attor-
ney General or his Office for the Court to enjoin.” Ibid. The
attorney general asserted no interest in defending the con-
stitutionality of H. B. 454 on behalf of the State.
——————
1 The other two defendants were the executive director of the Kentucky
Board of Medical Licensure and the Commonwealth’s Attorney for the
30th Judicial Circuit of Kentucky.
Cite as: 595 U. S. ____ (2022) 3
SOTOMAYOR, J., dissenting
Shortly thereafter, the attorney general and the respond-
ents submitted to the District Court a joint stipulation and
proposed order of dismissal. The stipulation provided that
the attorney general “agrees that any final judgment in this
action concerning the constitutionality of HB 454 (2018)
will be binding on the Office of the Attorney General, sub-
ject to any modification, reversal or vacation of the judg-
ment on appeal.” ECF Doc. 46, at 2. It also specified that
he reserved “all rights, claims, and defenses” that were
available to him, including those related to “whether he is
a proper party in this action and in any appeals arising out
of this action.” Id., at 1. The District Court entered the
order dismissing the attorney general from the case.
The attorney general did not participate in any further
proceedings before the District Court. The secretary con-
tinued to defend H. B. 454. After a 5-day bench trial, the
District Court issued a permanent injunction against the
enforcement of H. B. 454, declaring it unconstitutional un-
der this Court’s precedents. Subsequently, the secretary
alone filed a notice of appeal.
After the secretary’s appeal was fully briefed, but before
argument, then-Attorney General Beshear was elected
Governor and Daniel Cameron, a Republican, was elected
as Kentucky’s new attorney general. Four of the secretary’s
lawyers moved to withdraw from the case, explaining that
they would no longer be employed in their current positions.
Some weeks later, the same four attorneys, now employed
by the Office of the Attorney General, appeared as counsel
for the secretary. Attorney General Cameron also entered
an appearance as counsel for the secretary. He did not seek
to intervene.
The Court of Appeals rendered judgment against the sec-
retary, affirming the District Court’s judgment. After this
decision, the secretary communicated to the attorney gen-
eral that he did not intend to defend H. B. 454 further by,
4 CAMERON v. EMW WOMEN’S SURGICAL CENTER, P. S. C.
SOTOMAYOR, J., dissenting
for example, filing a petition for rehearing en banc or seek-
ing a writ of certiorari. Attorney General Cameron and the
lawyers from his office who had appeared as counsel for the
secretary moved to withdraw, and the attorney general
moved to intervene as a party in his own right. This was
nearly five months after the attorney general reappeared as
counsel for the secretary and over two years after the Dis-
trict Court entered the stipulated order of dismissal. The
attorney general also tendered a petition for rehearing en
banc.
The Court of Appeals denied the motion and dismissed
the petition for rehearing en banc. It observed, among other
things, that the attorney general’s motion to intervene
came “years into [the case’s] progress,” after both the Dis-
trict Court and the Court of Appeals had issued decisions.
EMW Women’s Surgical Center, P.S.C. v. Friedlander, 831
Fed. Appx. 748, 750 (CA6 2020). It explained that having
been “named . . . as a defendant” in the complaint and hav-
ing “stipulated [to his own] dismissal,” the attorney general
was unquestionably put on notice of the case long before the
Court of Appeals issued its decision. Id., at 751. In the
Court of Appeals’ view, allowing the attorney general to in-
tervene at this late hour would give would-be intervenors
“every incentive to sit out litigation until [a court of ap-
peals] issue[s] a decision contrary to their preferences,
whereupon they can spring to action.” Id., at 750. The
Court of Appeals clarified that it was “not reach[ing] the
issue of whether Attorney General Cameron has a substan-
tial legal interest in the subject matter of this case” nor
“question[ing] whether states’ attorneys general may ap-
propriately intervene to defend their states’ laws,” but
merely addressing the appropriateness of the attorney gen-
eral’s intervention under the circumstances of “this partic-
ular case.” Id., at 752, n. 4.
This Court granted the attorney general’s petition for cer-
tiorari, and now reverses.
Cite as: 595 U. S. ____ (2022) 5
SOTOMAYOR, J., dissenting
II
I have no quarrel with the Court’s holding that no juris-
dictional bar precluded the attorney general’s intervention.
On the facts of this case, however, I disagree with the
Court’s determination that the Court of Appeals’ denial of
the attorney general’s motion to intervene constituted an
abuse of discretion. The Court reaches that result only by
giving short shrift to a critical and unusual aspect of this
case: The attorney general’s motion to intervene was based
on arguments he had eschewed below and was filed only
after judgments had been rendered by both the District
Court and the Court of Appeals. The attorney general’s
change in position alone requires affirmance.
The Court correctly observes that “[r]esolution of a mo-
tion for permissive intervention is committed to the discre-
tion of the court before which intervention is sought.” Ante,
at 9 (citing Automobile Workers v. Scofield, 382 U. S. 205,
217, n. 10 (1965); Fed. Rule Civ. Proc. 24(b)(1)(a)). The
Court may reverse, in other words, only if it determines
that the Court of Appeals abused its discretion by denying
the attorney general’s motion for intervention. See gener-
ally NAACP, 413 U. S., at 366.
The attorney general sought to intervene in the Court of
Appeals “to ensure that [the State’s] interests with respect
to H. B. 454” were “fully defended.” ECF in No. 19–5516
(CA6, June 11, 2020), Doc. 56, pp. 5, 8; see id., at 13 (noting
that there is “no doubt” that Kentucky, “through Attorney
General Cameron,” has a sufficient legal interest in the
matter). In the District Court, however, the attorney gen-
eral took a different view. There, he represented that he
had no interest in the case because “H. B. 454 does not con-
fer upon the Attorney General the authority or duty to en-
force the provisions as enacted,” and insisted that the law
“does not provide the Attorney General with any regulatory
responsibility or other authority to take any action related
6 CAMERON v. EMW WOMEN’S SURGICAL CENTER, P. S. C.
SOTOMAYOR, J., dissenting
to the Act.” ECF Doc. 42, at 1. Based on this representa-
tion, respondents entered into a stipulation agreement with
the attorney general, and the District Court entered its dis-
missal order.
As a general matter, “ ‘where a party assumes a certain
position in a legal proceeding, and succeeds in maintaining
that position, he may not thereafter, simply because his in-
terests have changed, assume a contrary position, espe-
cially if it be to the prejudice of the party who has acqui-
esced in the position formerly taken by him.’ ” New
Hampshire v. Maine, 532 U. S. 742, 749 (2001) (quoting Da-
vis v. Wakelee, 156 U. S. 680, 689 (1895); alteration omit-
ted). This principle is not limited to private litigants.
Courts and other parties are also “entitled to rely on [a]
State’s plausible interpretation of the law it is charged with
enforcing.” Sorrell v. IMS Health Inc., 564 U. S. 552, 563
(2011). A state official’s late-breaking effort to change his
theory of state law comes with costs to judicial efficiency
and finality, and it disrupts the expectations not only of the
adversarial litigant but of other parties who may have liti-
gated based on their understanding of both the State’s po-
sition and who would represent the State’s interests. 2
The Court’s failure to acknowledge the attorney general’s
switch in position leads it to an erroneous result. The Court
primarily faults the Court of Appeals for “fail[ing] to ac-
count for the strength of the Kentucky attorney general’s
——————
2 In the majority’s view, the attorney general should not be held to his
earlier representation because, although he secured his own dismissal in
his official capacity and now seeks to intervene in his official capacity,
his theory of his role in the litigation is different. See ante, at 9–10, n. 5.
The Court cites no authority for this “two hats theory,” Tr. of Oral Arg.
29, because it cannot. This Court’s precedents recognize, of course, the
distinction between litigating in one’s personal capacity and one’s official
capacity. See, e.g., Bender v. Williamsport Area School Dist., 475 U. S.
534, 543–544 (1986). But the Court has never held that a state official
can wear separate “hats” within his official capacity for distinct purposes,
with different legal effect.
Cite as: 595 U. S. ____ (2022) 7
SOTOMAYOR, J., dissenting
interest in taking up the defense of HB 454.” Ante, at 9. All
agree that States and their authorized officials have sub-
stantial sovereign interests in defending their laws. The
Office of the Attorney General, however, previously repre-
sented that it had no interest in these proceedings. Had the
attorney general been a private litigant, that decision
would have been binding: This Court regularly “has . . . re-
fused to consider a party’s argument that contradicted a
joint ‘stipulation [entered] at the outset of th[e] litigation.’ ”
Christian Legal Soc. Chapter of Univ. of Cal., Hastings Col-
lege of Law v. Martinez, 561 U. S. 661, 677 (2010) (quoting
Board of Regents of Univ. of Wis. System v. Southworth, 529
U. S. 217, 226 (2000); alterations in original). Respect for
state sovereignty does not entitle a state official to evade
these well-established consequences. Given the attorney
general’s change in position and the deferential standard of
review, the Court of Appeals did not abuse its discretion by
denying his motion for intervention.
Further, as the Court acknowledges, Kentucky law pro-
vides that the attorney general and other authorized state
officials, including the secretary, “shar[e] . . . authority” to
defend the constitutionality of state laws, or to decline to do
so. Ante, at 8; see Ky. Rev. Stat. Ann. §12.210(1) (West
2021). The Court makes much of the attorney general’s role
in defending Kentucky law, but gives short shrift to the
manner in which Kentucky has structured its law to allow
other state officers to represent the State’s interests in
court. When the attorney general stipulated to dismissal
from the case, he acquiesced to the secretary’s right under
state law to represent Kentucky’s interests in the manner
that the secretary saw fit.
Notably, the Court’s decision to allow intervention on ap-
peal is without precedent. Before the Court of Appeals, the
attorney general was able to identify only two instances,
both from the Ninth Circuit, in which a federal court of ap-
peals granted a post-decision motion to intervene, a fact
8 CAMERON v. EMW WOMEN’S SURGICAL CENTER, P. S. C.
SOTOMAYOR, J., dissenting
that “points decisively against intervention” and hardly
suggests that denial of intervention would be an abuse of
discretion. 831 Fed. Appx., at 750. Neither of those two
cases involved a situation in which the intervenor on behalf
of the State was a party to the case earlier in the proceed-
ings, let alone one in which the intervenor had previously
disclaimed his theory of intervention to obtain dismissal
from the suit. See Day v. Apoliona, 505 F. 3d 963, 965–966
(CA9 2007); Peruta v. County of San Diego, 824 F. 3d 919,
941 (CA9 2016) (en banc). Indeed, the Ninth Circuit has
denied intervention on facts similar to these. In Yniguez v.
Arizona, 939 F. 2d 727 (1991), the court considered a state
attorney general’s motion to intervene on appeal to defend
the constitutionality of a state law where the attorney gen-
eral had previously “argued for and won a dismissal of the
suit against him in the district court.” Id., at 729. There,
as here, the attorney general sought to intervene after the
only remaining state defendant in the case declined to pur-
sue the case further. Id., at 730. The court nonetheless
held that “having argued in the district court that he should
not be a party, the Attorney General is estopped from now
arguing that he should be.” Id., at 738. Other Courts of
Appeals have similarly held that stipulations entered into
by a public official in his official capacity are binding on the
official’s successors. Morales Feliciano v. Rullan, 303 F. 3d
1, 8 (CA1 2002); Vann v. United States Dept. of Interior, 701
F. 3d 927, 929 (CADC 2012); see generally 11A A. Miller,
M. Kane, & C. Wright, Federal Practice and Procedure
§2956 (3d ed. 2021).
Perhaps the Court means to excuse the attorney general
from his prior stipulation because of the intervening elec-
tion. That election undoubtedly explains, as a practical
matter, the attorney general’s change in position. But the
Court’s reasoning would seem to apply equally if Attorney
General Cameron had held office since the outset of this
lawsuit, made a calculated decision to stipulate to dismissal
Cite as: 595 U. S. ____ (2022) 9
SOTOMAYOR, J., dissenting
and let another state officer take the lead, and later sought
to reenter when that officer decided not to pursue further
appeals.
Moreover, this is not the first time a governmental office
has changed hands in the middle of a protracted lawsuit,
and it certainly will not be the last. Elections have conse-
quences not just for the public but also for state officers who
may find themselves bound by strategic litigation choices
made by their predecessors in office. Shifts in the political
winds do not support a special carveout to longstanding
principles of estoppel. Rules that protect reliance and final-
ity exist for good reason: Courts, litigants, and the public
must be able to trust representations made in court. If an-
ything, that reliance is only heightened when a government
official represented that he had no interest in defending
state law.
* * *
The question in this case is not whether a state attorney
general may intervene, after a federal court of appeals al-
ready has rendered its judgment, for the purpose of defend-
ing a state law where no other state actor will do so. At
issue is a more specific question: whether the Court of Ap-
peals acted within its discretion by denying this attorney
general leave to intervene when his office previously stipu-
lated to dismissal on grounds that contradicted his argu-
ment for intervention. Under these circumstances, I would
not disturb the “sound discretion” of the court below.
NAACP, 413 U. S., at 366. I respectfully dissent.