Berger v. North Carolina State Conference of the NAACP

(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
BERGER ET AL. v. NORTH CAROLINA STATE
CONFERENCE OF THE NAACP ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
No. 21–248. Argued March 21, 2022—Decided June 23, 2022
In 2018, North Carolina amended its Constitution to provide that
“[v]oters offering to vote in person shall present photographic identifi-
cation.” Art. VI, §2(4). To implement the constitutional mandate, the
General Assembly approved S. B. 824. The Governor vetoed the bill,
the General Assembly overrode the veto, and S. B. 824 went into effect.
The state conference of the NAACP then sued the Governor and mem-
bers of the State Board of Elections (collectively, Board), a state agency
whose members are both appointed and removable by the Governor.
The NAACP alleged that S. B. 824 offends the Federal Constitution.
The Board was defended by the State’s attorney general, who, like the
Governor, is an independently elected official. The attorney general at
the time was a former state senator who voted against an earlier voter-
ID law and filed a declaration in support of a legal challenge against
it. The speaker of the State House of Representatives and president
pro tempore of the State Senate (hereinafter, legislative leaders)
moved to intervene, arguing that, without their participation, im-
portant state interests would not be adequately represented in light of
the Governor’s opposition to S. B. 824, the Board’s allegiance to the
Governor and its tepid defense of S. B. 824 in parallel state-court pro-
ceedings, and the attorney general’s opposition to earlier voter-ID ef-
forts.
The District Court applied a presumption that the legislative lead-
ers’ interests would be adequately represented by the Governor, Board,
and the attorney general and denied their motion to intervene. Unsat-
isfied with the Board’s defense following the denial of their motion, the
legislative leaders sought to lodge an amicus brief and accompanying
materials, but the District Court refused to consider them, struck them
2 BERGER v. NORTH CAROLINA STATE
CONFERENCE OF THE NAACP
Syllabus
from the record, and granted a preliminary injunction barring enforce-
ment of S. B. 824. The Fourth Circuit considered both District Court
rulings in separate appeals before separate panels. On the prelimi-
nary injunction ruling, the panel held that the District Court had
abused its discretion because the record contained insufficient evi-
dence to show that S. B. 824 violated the Federal Constitution. On the
intervention ruling, a separate panel agreed with the legislative lead-
ers and held that the District Court had erred when denying them
leave to intervene. Eventually, however, the Fourth Circuit decided to
rehear the matter en banc and ruled that the legislative leaders were
not entitled to intervene in the District Court proceedings. This Court
agreed to hear the matter to resolve disagreements among the courts
of appeals on the proper treatment of motions to intervene in cases like
this one.
Held: North Carolina’s legislative leaders are entitled to intervene in
this litigation. Pp. 8–19.
(a) Federal Rule of Civil Procedure 24(a)(2) provides that a “court
must permit anyone to intervene” who, (1) “[o]n timely motion,” (2)
“claims an interest relating to the property or transaction that is the
subject of the action, and is so situated that disposing the action may
as a practical matter impair or impede the movant’s ability to protect
its interest,” (3) “unless existing parties adequately represent that in-
terest.” No one disputes the timeliness of the motion to intervene here.
The Court thus addresses the Rule’s two remaining requirements.
States possess “ ‘a legitimate interest in the continued enforce[ment]
of [their] own statutes,’ ” Cameron v. EMW Women’s Surgical Center,
P. S. C., 595 U. S. ___, ___, and States may organize themselves in a
variety of ways. When a State chooses to allocate authority among
different officials who do not answer to one another, different interests
and perspectives, all important to the administration of state govern-
ment, may emerge. See, e.g., Brnovich v. Democratic National Com-
mittee, 594 U. S. ___. Appropriate respect for these realities suggests
that federal courts should rarely question that a State’s interests will
be practically impaired or impeded if its duly authorized representa-
tives are excluded from participating in federal litigation challenging
state law. Nor are state interests the only interests at stake. Permit-
ting the participation of lawfully authorized state agents promotes in-
formed federal-court decisionmaking and avoids the risk of setting
aside duly enacted state law based on an incomplete understanding of
relevant state interests. This Court’s teachings on these scores have
been many, clear, and recent. See, e.g., Virginia House of Delegates v.
Bethune-Hill, 587 U. S. ___; Hollingsworth v. Perry, 570 U. S. 693.
These precedents and the principles they represent are dispositive
here. North Carolina law explicitly provides that “[t]he Speaker of the
Cite as: 597 U. S. ____ (2022) 3
Syllabus
House of Representatives and the President Pro Tempore of the Sen-
ate, as agents of the State, by and through counsel of their choice,”
“shall jointly have standing to intervene on behalf of the General As-
sembly as a party in any judicial proceeding challenging a North Car-
olina statute or provision of the North Carolina Constitution.” N. C.
Gen. Stat. Ann. §1–72.2(b). And the State has made plain that it con-
siders the leaders of the General Assembly “necessary parties” to suits
like this one. §120–32.6(b).
The Board submits that North Carolina law does not afford the leg-
islative leaders authority to represent state interests. But that argu-
ment is difficult to square with the express statutory language. Alter-
natively, the Board argues that the statutes authorizing the legislative
leaders to participate here violate the State Constitution by usurping
power vested in the executive branch alone. That logic is hard to fol-
low, however, given the Board’s concession that the legislative leaders
may intervene permissively under Rule 24(b), and likely as a matter
of right under Rule 24(a)(2) if the attorney general ceases to defend the
law.
The NAACP offers a different reply, pointing out that Rule 24(a)(2)
permits intervention only by “new” parties. And, it submits, the legis-
lative leaders are already effectively “existing” parties to this suit chal-
lenging the enforcement of state law. That argument rests on a prem-
ise that is both formally and functionally mistaken. First, the NAACP
has not sued the State but only certain state officers, and, so far, the
legislative leaders are not among them. Functionally, however, this
suit implicates North Carolina’s sovereign interests regardless of the
named parties. And, where a State chooses to divide its sovereign au-
thority among different officials and authorize their participation in a
suit challenging state law, a full consideration of the State’s practical
interests may require the involvement of different voices with different
perspectives. Pp. 8–13.
(b) Concerning Rule 24(a)(2)’s third requirement, lower courts have
adopted a variety of tests for evaluating whether an existing defendant
already “adequately represent[s]” the same interests a proposed inter-
venor seeks to vindicate. Here, both the District Court and the en banc
Court of Appeals improperly applied a “presumption” that the Board
adequately represented the legislative leaders’ interests and held that
the leaders could not overcome this presumption. But Rule 24(a)(2)’s
test in this regard presents proposed intervenors with only a minimal
challenge: It promises intervention to those who bear an interest that
may be practically impaired or impeded “unless existing parties ade-
quately represent that [same] interest.” See, e.g., Trbovich v. Mine
Workers, 404 U. S. 528. Some lower courts have suggested that a pre-
sumption of adequate representation remains appropriate in certain
4 BERGER v. NORTH CAROLINA STATE
CONFERENCE OF THE NAACP
Syllabus
classes of cases. But even taken on their own terms, none of these
presumptions applies to cases like this one. For instance, some lower
courts have adopted a presumption of adequate representation in
cases where a movant’s interests are identical to those of an existing
party. But even the Board concedes that this presumption applies only
when interests fully overlap.
This litigation illustrates how divided state governments sometimes
warrant participation by multiple state officials in federal court. Here,
the legislative leaders seek to give voice to a perspective different from
the Board’s. They assert an unalloyed interest in vindicating state law
from constitutional challenge, without an eye to crosscutting adminis-
trative concerns—concerns that have colored the Board’s defense thus
far. The NAACP worries that allowing the legislative leaders to inter-
vene could “make trial management impossible.” While a proliferation
of motions to intervene may be a cause for concern in some cases, this
case is not one. Federal courts routinely handle cases involving mul-
tiple officials sometimes represented by different attorneys taking dif-
ferent positions. See, e.g., Whole Woman’s Health v. Jackson, 595
U. S. ___. Whatever additional burdens adding the legislative leaders
to this case may pose, those burdens fall well within the bounds of eve-
ryday case management. Pp. 13–19.
999 F. 3d 915, reversed.
GORSUCH, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and THOMAS, BREYER, ALITO, KAGAN, KAVANAUGH, and BARRETT,
JJ., joined. SOTOMAYOR, J., filed a dissenting opinion.
Cite as: 597 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. 21–248
_________________
PHILIP E. BERGER, ET AL., PETITIONERS v. NORTH
CAROLINA STATE CONFERENCE OF THE
NAACP, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[June 23, 2022]
JUSTICE GORSUCH delivered the opinion of the Court.
At the heart of this lawsuit lies a challenge to the consti-
tutionality of a North Carolina election law. But the merits
of that dispute are not before us, only an antecedent ques-
tion of civil procedure: Are two leaders of North Carolina’s
state legislature entitled to participate in the case under
the terms of Federal Rule of Civil Procedure 24(a)(2)?
I
A
Within wide constitutional bounds, States are free to
structure themselves as they wish. Often, they choose to
conduct their affairs through a variety of branches, agen-
cies, and elected and appointed officials. These constituent
pieces sometimes work together to achieve shared goals;
other times they reach very different judgments about im-
portant policy questions and act accordingly. This diffusion
of governmental powers within and across institutions may
be an everyday feature of American life. But it can also pose
its difficulties when a State’s laws or policies are challenged
in federal court.
2 BERGER v. NORTH CAROLINA STATE
CONFERENCE OF THE NAACP
Opinion of the Court
Suppose someone seeks to attack a state law on the
ground that it is inconsistent with the Federal Constitution.
Generally, States themselves are immune from suit in fed-
eral court. See Sossamon v. Texas, 563 U. S. 277, 284
(2011). So usually a plaintiff will sue the individual state
officials most responsible for enforcing the law in question
and seek injunctive or declaratory relief against them. See
Ex parte Young, 209 U. S. 123, 159–160 (1908). Despite the
artifice, of course, a State will as a practical matter often
retain a strong interest in this kind of litigation. After all,
however captioned, a suit of this sort can implicate “the con-
tinued enforceability of [the State’s] own statutes.” Maine
v. Taylor, 477 U. S. 131, 137 (1986). To defend its practical
interests, the State may choose to mount a legal defense of
the named official defendants and speak with a “single
voice,” often through an attorney general. Virginia House
of Delegates v. Bethune-Hill, 587 U. S. ___, ___ (2019) (slip
op., at 5).
Still, not every State has structured itself this way. Some
have chosen to authorize multiple officials to defend their
practical interests in cases like these. See ibid. North Car-
olina falls into this camp. The State’s attorney general
wields some authority to represent individual official de-
fendants in federal litigation. See Martin v. Thornburg,
320 N. C. 533, 545–546, 359 S. E. 2d 472, 479 (1987); N. C.
Const., Art. III, §§ 7(1), (2) (establishing the office of attor-
ney general and declaring that his “duties shall be pre-
scribed by law”). But North Carolina’s General Assembly
has also empowered the leaders of its two legislative houses
to participate in litigation on the State’s behalf under cer-
tain circumstances and with counsel of their own choosing.
See N. C. Gen. Stat. Ann. § 1–72.2 (2021).
The reasons why a State might choose to proceed this way
are understandable enough. Sometimes leaders in different
branches of government may see the State’s interests at
stake in litigation differently. Some States may judge that
Cite as: 597 U. S. ____ (2022) 3
Opinion of the Court
important public perspectives would be lost without a
mechanism allowing multiple officials to respond. It seems
North Carolina has some experience with just these sorts of
issues. More than once a North Carolina attorney general
has opposed laws enacted by the General Assembly and de-
clined to defend them fully in federal litigation. See, e.g.,
North Carolina v. North Carolina State Conference of
NAACP, 581 U. S. ___, ___ (2017) (ROBERTS, C. J., state-
ment respecting denial of certiorari) (slip op., at 2); App. 79;
see also N. Devins & S. Prakash, Fifty States, Fifty Attor-
neys General, and Fifty Approaches to the Duty To Defend,
124 Yale L. J. 2100, 2152, n. 217, 2187 (2015).
B
The facts of this case also illustrate how divided state
government can lead to disagreements over the defense of
state law in federal court. In November 2018, the people of
North Carolina amended the State Constitution to provide
that “[v]oters offering to vote in person shall present photo-
graphic identification [(photo ID)].” Art. VI, § 2(4). The
people further provided that “[t]he General Assembly shall
enact general laws governing the requirements of such pho-
tographic identification, which may include exceptions.”
Ibid. Consistent with that directive, the General Assembly
eventually approved Senate Bill 824 (S. B. 824). 2017 Gen.
Assem., 2018 Reg. Sess. Under that law’s terms, those
seeking to vote must do one of three things: present an ac-
ceptable photo ID, complete a provisional ballot and later
produce a photo ID, or submit a form explaining why they
cannot present a photo ID. See N. C. Gen. Stat. Ann.
§§ 163A–1145.1(a), (c), (d), as added by § 1.2(a), 2018 N. C.
Sess. Laws 144, pp. 73–74. Photo ID cards are available
free of charge in each of the State’s 100 counties without the
need for corroborating documentation. § 163A–869.1, as
added by § 1.1(a), id., at 72–73. After the law’s passage, the
Governor vetoed the bill, the General Assembly responded
4 BERGER v. NORTH CAROLINA STATE
CONFERENCE OF THE NAACP
Opinion of the Court
by overriding that veto, and S. B. 824 went into effect on
December 19, 2018.
The next day, the National Association for the Advance-
ment of Colored People (NAACP) sued the Governor and the
members of the State Board of Elections (collectively,
Board). The Governor appoints the Board’s members and
may remove them under certain circumstances. See N. C.
Gen. Stat. Ann. §§ 143B–16, 163–19, 163–40. In its law-
suit, the NAACP alleged that S. B. 824 offends the Federal
Constitution. The State’s attorney general assumed re-
sponsibility for defending the Board. See § 114–2. Like the
Governor, the attorney general is an independently elected
official. See N. C. Const., Art. III, § 7(1). Much like the
Governor, too, while serving as a state senator the attorney
general voted against an earlier voter-ID law and filed a
declaration in support of a legal challenge against it. See
North Carolina State Conference of NAACP v. McCrory, 997
F. Supp. 2d 322, 337–338, 357–359 (MDNC 2014).
Soon, the speaker of the State House of Representatives
and president pro tempore of the State Senate (legislative
leaders) moved to intervene. App. 52. They noted that
North Carolina law expressly authorizes them “to intervene
on behalf of the General Assembly as a party in any judicial
proceeding challenging a North Carolina statute or provi-
sion of the North Carolina Constitution.” N. C. Gen. Stat.
Ann. § 1–72.2(b). They observed that, in cases of this sort,
state law further provides that “both the General Assembly
and the Governor constitute the State of North Carolina.”
§ 1–72.2(a). And the legislative leaders suggested that,
without their participation, important state interests would
not be adequately represented in light of the Governor’s op-
position to S. B. 824, the Board’s allegiance to the Governor,
and the attorney general’s opposition to earlier voter-ID ef-
forts. App. 65–70. Finally, the legislative leaders pointed
to parallel state-court proceedings in which they claimed
the Board had offered only a “tepid” defense of S. B. 824.
Cite as: 597 U. S. ____ (2022) 5
Opinion of the Court
Id., at 127, n. 1.
The District Court denied the motion to intervene. North
Carolina State Conference of NAACP v. Cooper, 332 F. R. D.
161 (MDNC 2019). In doing so, the court applied a “pre-
sumption” that the legislative leaders’ interests would be
adequately represented by the Governor and Board and
their legal representative, the attorney general. Id., at
168–170. On the court’s view, the legislative leaders might
someday have an interest sufficient to warrant intervention
if the existing parties refused to offer any defense of S. B.
824. Id., at 166. But because nothing like that had yet hap-
pened, the District Court denied the motion to intervene
without prejudice to renewal later. Id., at 172–173.
In time, the legislative leaders took up the District
Court’s offer to renew their motion. They pointed to this
Court’s intervening decision in Bethune-Hill, which “clari-
fied” that legislative leaders sometimes may be legally en-
titled to intervene and represent “the interest of the State
in defending the constitutionality of ” a state law. App. 159.
They also updated the District Court on the Board’s conduct
in state-court proceedings. There, the Board had conceded
that its “ ‘primary objective’ ” wasn’t defending S. B. 824, but
obtaining guidance regarding which law it would need to
enforce in an upcoming election (S. B. 824 or preexisting
law). Id., at 156. Seizing on this concession, the state-court
plaintiffs argued that even the Board did not think it would
ultimately prevail on the merits. Id., at 157. In the end,
however, the District Court was unmoved by these develop-
ments. It denied the legislative leaders’ renewed motion
and addressed Bethune-Hill only in a footnote stating that
the decision did not “change the calculus.” North Carolina
State Conference of NAACP v. Cooper, 2019 WL 5840845,
*2, n. 3 (MDNC, Nov. 7, 2019).
As the federal litigation proceeded without the legislative
leaders, the NAACP sought a preliminary injunction to pre-
6 BERGER v. NORTH CAROLINA STATE
CONFERENCE OF THE NAACP
Opinion of the Court
vent the Board from enforcing S. B. 824 in upcoming elec-
tions. By this point, the District Court had dismissed the
Governor from the suit. Only the Board members, repre-
sented by the attorney general, remained as defendants. In
support of its motion for injunctive relief, the NAACP of-
fered five expert reports. In reply, the Board did not oppose
the motion on timeliness grounds even though the NAACP
had waited nine months before seeking what it described as
critical emergency relief. See App. 311–313; Memorandum
of Law in No. 1:18–cv–1034 (MDNC, Sept. 17, 2019), ECF
Doc. 73. Nor did the Board produce competing expert re-
ports. Instead, it supplied a single affidavit from its execu-
tive director and stressed again the need for clarity about
which law to apply. App. 312. Once more unsatisfied with
the vigor of the Board’s response, the legislative leaders
sought to lodge an amicus brief, five expert reports, and sev-
eral other declarations. At the end of the day, however, the
District Court refused to consider the amicus brief and ac-
companying materials, struck them from the record, and
granted a preliminary injunction barring enforcement of
S. B. 824. North Carolina State Conference of NAACP v.
Cooper, 430 F. Supp. 3d 15, 54 (MDNC 2019).
C
The Fourth Circuit took up the District Court’s prelimi-
nary injunction and intervention rulings in separate ap-
peals before separate panels. While these appeals were
pending, the Board did not seek an interim stay of the Dis-
trict Court’s preliminary injunction. Apparently, it chose
not to do so “due to the disruptive effect such relief would
have had on” election administration. App. 366, n. 8. As a
result, S. B. 824 was not enforced during the State’s March
2020 primary election.
In the appeal concerning the District Court’s preliminary
injunction ruling, the legislative leaders sought leave to in-
tervene and the Fourth Circuit granted their motion. See
Cite as: 597 U. S. ____ (2022) 7
Opinion of the Court
Order in North Carolina State Conference of NAACP v. Ray-
mond, No. 20–1092 (CA4, Mar. 27, 2020), ECF Doc. 43.
Meanwhile, the Governor filed an amicus brief contending
that the District Court had not gone far enough: “[The] pre-
liminary injunctio[n] should be made permanent, and . . .
this unconstitutional law should never go into effect.” App.
844. After considering all the submissions before it, a unan-
imous panel of the Court of Appeals largely agreed with the
legislative leaders and reversed. North Carolina State Con-
ference of NAACP v. Raymond, 981 F. 3d 295, 298 (2020).
The panel held that the District Court had abused its dis-
cretion in issuing the preliminary injunction because the
record contained insufficient evidence to show that S. B.
824 violated the Federal Constitution. In particular, the
panel explained that North Carolina’s law “is more protec-
tive of the right to vote than other states’ voter ID laws that
courts have approved.” Id., at 310. Later, the Court of Ap-
peals denied rehearing en banc; no judge noted a dissent.
Any further District Court proceedings were thus left to un-
fold without a preliminary injunction in place.
Separately and hoping to participate in those future pro-
ceedings, the legislative leaders asked another panel of the
Fourth Circuit to vacate the District Court’s decision deny-
ing their motion to intervene. The legislative leaders
stressed that state law expressly authorizes them to partic-
ipate in cases like this one, and they argued that they sat-
isfied all the requirements for intervention as a matter of
right under Federal Rule of Civil Procedure 24(a)(2). For
its part, the Court of Appeals again agreed with the legisla-
tive leaders, this time holding that the District Court had
erred when denying them leave to intervene. 970 F. 3d 489,
503–504, 506 (2020).
Eventually, however, the Fourth Circuit decided to re-
hear the matter en banc and changed course. A nine-judge
majority ruled that the legislative leaders were not entitled
to intervene in District Court proceedings because they
8 BERGER v. NORTH CAROLINA STATE
CONFERENCE OF THE NAACP
Opinion of the Court
could not overcome a “heightened presumption” that the
Board already “adequately represented” their interests.
999 F. 3d 915, 927, 932–934 (2021). Six judges dissented.
Among other things, the dissenters suggested that the ma-
jority had erred by “ignor[ing] North Carolina’s law re-
questing two agents in cases challenging the constitution-
ality of its duly-enacted statutes” and by “setting the bar for
the Intervenors to clear too high.” Id., at 945 (opinion of
Quattlebaum, J.); see also id., at 939 (opinion of Wilkinson,
J.); id., at 941 (opinion of Niemeyer, J.).
The legislative leaders responded by petitioning this
Court to review the Fourth Circuit’s en banc ruling. We
agreed to hear the matter in order to resolve disagreements
among the circuits about the proper treatment of motions
to intervene in cases like this one. 595 U. S. ___ (2021).
II
Our starting point lies in Rule 24(a)(2) of the Federal
Rules of Civil Procedure. As relevant here, the Rule pro-
vides that a “court must permit anyone to intervene” who,
(1) “[o]n timely motion,” (2) “claims an interest relating to
the property or transaction that is the subject of the action,
and is so situated that disposing of the action may as a prac-
tical matter impair or impede the movant’s ability to protect
its interest,” (3) “unless existing parties adequately repre-
sent that interest.” Everyone before us agrees that the leg-
islative leaders’ motion to intervene was timely. The only
disagreements we face concern the Rule’s two remaining re-
quirements.
A
We focus first on the question whether the legislative
leaders have claimed an interest in the resolution of this
lawsuit that may be practically impaired or impeded with-
out their participation. No one questions that States pos-
sess “ ‘a legitimate interest in the continued enforce[ment]
Cite as: 597 U. S. ____ (2022) 9
Opinion of the Court
of [their] own statutes.’ ” Cameron v. EMW Women’s Surgi-
cal Center, P. S. C., 595 U. S. ___, ___ (2022) (slip op., at 8)
(quoting Taylor, 477 U. S., at 137). No one questions that
States may organize themselves in a variety of ways. After
all, the separation of government powers has long been rec-
ognized as vital to the preservation of liberty, and it is
through the power to “structure . . . its government, and the
character of those who exercise government authority,
[that] a State defines itself as a sovereign.” Gregory v. Ash-
croft, 501 U. S. 452, 460 (1991). Nor does anyone question
that, when a State chooses to allocate authority among dif-
ferent officials who do not answer to one another, different
interests and perspectives, all important to the administra-
tion of state government, may emerge. See, e.g., Brnovich
v. Democratic National Committee, 594 U. S. ___ (2021) (Ar-
izona’s secretary of state and attorney general took opposite
sides).
Appropriate respect for these realities suggests that fed-
eral courts should rarely question that a State’s interests
will be practically impaired or impeded if its duly author-
ized representatives are excluded from participating in fed-
eral litigation challenging state law. To hold otherwise
would not only evince disrespect for a State’s chosen means
of diffusing its sovereign powers among various branches
and officials. It would not only risk turning a deaf federal
ear to voices the State has deemed crucial to understanding
the full range of its interests. It would encourage plaintiffs
to make strategic choices to control which state agents they
will face across the aisle in federal court. It would tempt
litigants to select as their defendants those individual offi-
cials they consider most sympathetic to their cause or most
inclined to settle favorably and quickly. All of which would
risk a hobbled litigation rather than a full and fair adver-
sarial testing of the State’s interests and arguments.
Nor are state interests the only interests at stake. Re-
10 BERGER v. NORTH CAROLINA STATE
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Opinion of the Court
specting the States’ “plan[s] for the distribution of govern-
mental powers” also serves important national interests.
Mayor of Philadelphia v. Educational Equality League, 415
U. S. 605, 615, n. 13 (1974). It better enables the States to
serve as a “balance” to federal authority. Bond v. United
States, 564 U. S. 211, 221 (2011). It permits States to ac-
commodate government to local conditions and circum-
stances. See ibid. And it allows States to serve as labora-
tories of “innovation and experimentation” from which the
federal government itself may learn and from which a “mo-
bile citizenry” benefits. Gregory, 501 U. S., at 458. Finally,
a federal court tasked with testing the constitutionality of
state law wields weighty “authority over a State’s most fun-
damental political processes.” Alden v. Maine, 527 U. S.
706, 751 (1999). Permitting the participation of lawfully
authorized state agents promotes informed federal-court
decisionmaking and avoids the risk of setting aside duly en-
acted state law based on an incomplete understanding of
relevant state interests.
This Court’s teachings on these scores have been many,
clear, and recent. Earlier this Term in Cameron, we ex-
plained that a State is free to “empowe[r] multiple officials
to defend its sovereign interests in federal court.” 595 U. S.,
at ___ (slip op., at 8). Three Terms ago in Bethune-Hill, we
observed that “ ‘a State must be able to designate agents to
represent it in federal court’ ” and may authorize its legisla-
ture “to litigate on the State’s behalf, either generally or in
a defined set of cases.” 587 U. S., at ___–___ (slip op., at 4–
5). “[T]he choice belongs to” the sovereign State. Id., at ___
(slip op., at 5). In Hollingsworth v. Perry, this Court
stressed that “state law may provide for other officials,” be-
sides an attorney general, “to speak for the State in federal
court” as some States have done for their “presiding legis-
lative officers.” 570 U. S. 693, 710 (2013). And in Karcher
v. May, this Court held that two state legislative leaders
Cite as: 597 U. S. ____ (2022) 11
Opinion of the Court
“authori[zed] under state law to represent the State’s inter-
ests” in federal court could defend state laws there as par-
ties. 484 U. S. 72, 75, 81–82 (1987).
These principles and precedents are dispositive here.
North Carolina has expressly authorized the legislative
leaders to defend the State’s practical interests in litigation
of this sort. State law provides that “[t]he Speaker of the
House of Representatives and the President Pro Tempore
of the Senate, as agents of the State, by and through coun-
sel of their choice,” “shall jointly have standing to intervene
on behalf of the General Assembly as a party in any judicial
proceeding challenging a North Carolina statute or provi-
sion of the North Carolina Constitution.” N. C. Gen. Stat.
Ann. § 1–72.2(b). Even beyond these instructions, the State
has made plain that it considers the leaders of the General
Assembly “necessary parties” to suits like this one. § 120–
32.6(b).
Tellingly, the Board seems to agree that, if North Caro-
lina law authorizes participation by the legislative leaders
on behalf of the State, a federal court should find the inter-
est requirement of Rule 24(a)(2) satisfied. Brief for State
Respondents 20, 28. The Board submits only that, in fact,
North Carolina law does not afford the legislative leaders
that authority. Id., at 49–50. But while we are hardly the
final arbiters of North Carolina law, the Board’s argument
seems more than a little difficult to square with the express
statutory language above. One of these provisions is even
entitled, “General Assembly Acting on Behalf of the State
of North Carolina in Certain Actions.” § 120–32.6(b). It
provides that the legislative leaders may defend state laws
“as agents of the State.” Ibid.
Retreating, the Board argues alternatively that the stat-
utes authorizing the legislative leaders to participate here
violate the State Constitution by usurping authority vested
in the executive branch. Brief for State Respondents 50–
55; N. C. Const., Art. I, § 6. But the Board’s logic is hard to
12 BERGER v. NORTH CAROLINA STATE
CONFERENCE OF THE NAACP
Opinion of the Court
follow given its concession that the legislative leaders may
intervene permissively under Rule 24(b), and likely as a
matter of right under Rule 24(a)(2) if the attorney general
ceases to represent the Board. Brief for State Respondents
2, 48, 55. Nor, for that matter, does the Board identify an-
ything to support its suggestion that the State’s executive
branch holds a constitutional monopoly on representing
North Carolina’s practical interests in court. Instead, the
parties direct us to a provision stating that the General As-
sembly may determine the scope of the attorney general’s
powers. See N. C. Const., Art. III, § 7(2); Bailey v. State,
353 N. C. 142, 152–153, 540 S. E. 2d 313, 320 (2000). And,
as we have seen, while the General Assembly has afforded
the attorney general considerable authority, it has also re-
served to itself some authority to defend state law on behalf
of the State. See N. C. Gen. Stat. Ann. § 120–32.6(b). In
fact, it seems the General Assembly has sometimes even
entrusted the defense of state interests to private persons.
See § 1–608(b) (permitting private citizens to bring false-
claims actions “for the State”).
The NAACP offers a different reply. It points out that
Rule 24(a)(2) permits intervention only by “new” parties.
And, it submits, the legislative leaders are already effec-
tively “existing” parties to this suit challenging the enforce-
ment of state law. Brief for NAACP Respondents 12–14.
But whatever other problems may attend this argument, it
rests on a premise that is both formally and functionally
mistaken. As a formal matter and consistent with princi-
ples of sovereign immunity, the NAACP has not sued the
State. Only state officers are or may be “parties” here—
and, so far, the legislative leaders are not among them. See
Young, 209 U. S., at 159–160. Functionally, of course, this
suit implicates North Carolina’s sovereign interests regard-
less of the named parties. See Part I–A, supra. Yet, con-
trary to the premise implicit in the NAACP’s argument, a
plaintiff who chooses to name this or that official defendant
Cite as: 597 U. S. ____ (2022) 13
Opinion of the Court
does not necessarily and always capture all relevant state
interests. Instead and as we have seen, where a State
chooses to divide its sovereign authority among different of-
ficials and authorize their participation in a suit challeng-
ing state law, a full consideration of the State’s practical
interests may require the involvement of different voices
with different perspectives. To hold otherwise would risk
allowing a private plaintiff to pick its preferred defendants
and potentially silence those whom the State deems essen-
tial to a fair understanding of its interests.
B
The only remaining question we face concerns adequacy
of representation. Interpreting Rule 24(a)(2), lower courts
have adopted a variety of tests for evaluating whether an
existing defendant already “adequately represent[s]” the
same interests a proposed intervenor seeks to vindicate. In
this case, both the District Court and the en banc Court of
Appeals applied a “presumption” that the Board adequately
represented the legislative leaders’ interests and held that
the leaders could not overcome this presumption. 999 F. 3d,
at 934; Cooper, 332 F. R. D., at 171.
Once more, we cannot agree. As an initial matter, Rule
24(a)(2) promises intervention to those who bear an interest
that may be practically impaired or impeded “unless exist-
ing parties adequately represent that interest.” In some
cases, too, this Court has described the Rule’s test as pre-
senting proposed intervenors with only a minimal chal-
lenge.
Take Trbovich v. Mine Workers, in which this Court ad-
dressed a request to intervene by a private party who as-
serted a related interest to that of an existing government
party. 404 U. S. 528 (1972). There, the Secretary of Labor
sued to set aside a union election. The same union member
who filed the administrative complaint that triggered the
Secretary’s suit sought to intervene under Rule 24(a). Id.,14 BERGER v. NORTH CAROLINA STATE
CONFERENCE OF THE NAACP
Opinion of the Court
at 529–530. At a high level of abstraction, the union mem-
ber’s interest and the Secretary’s might have seemed
closely aligned. Even so, this Court rejected the Secretary’s
suggestion that he should be presumed an adequate repre-
sentative of the union member’s interests “unless the court
. . . find[s] that the Secretary has failed to perform his stat-
utory duty.” Id., at 538. The Court acknowledged that the
Secretary’s and the union member’s interests were “re-
lated,” but it emphasized that the interests were not “iden-
tical”—the union member sought relief against his union,
full stop; meanwhile, the Secretary also had to bear in mind
broader public-policy implications. Id., at 538–539. Rather
than endorse a presumption of adequacy, the Court held
that a movant’s burden in circumstances like these “should
be treated as minimal.” Id., at 538, n. 10.
To be sure, some lower courts have suggested that a pre-
sumption of adequate representation remains appropriate
in certain classes of cases. But even taken on their own
terms, none of these presumptions applies to cases like
ours. For example, the Fourth Circuit has endorsed a pre-
sumption of adequate representation where a member of
the public seeks to intervene to defend a law alongside the
government. See 999 F. 3d, at 932–933. There, the Fourth
Circuit has reasoned, a court may presume that legally au-
thorized government agents will adequately represent the
public’s interest in its chosen laws. Here, by contrast, the
legislative leaders are among those North Carolina has ex-
pressly authorized to participate in litigation to protect the
State’s interests in its duly enacted laws. Id., at 951 (Quat-
tlebaum, J., dissenting).
Similarly, some lower courts have adopted a presumption
of adequate representation in cases where a movant’s inter-
ests are identical to those of an existing party. See 7C
C. Wright, A. Miller, & M. Kane, Federal Practice and Pro-
cedure § 1909 (3d ed. Supp. 2022) (Wright & Miller). But
even the Board concedes that this presumption applies only
Cite as: 597 U. S. ____ (2022) 15
Opinion of the Court
when interests “overla[p] fully.” Brief for State Respond-
ents 26. Where “the absentee’s interest is similar to, but
not identical with, that of one of the parties,” that normally
is not enough to trigger a presumption of adequate repre-
sentation. 7C Wright & Miller § 1909. And again, a pre-
sumption like that holds no purchase here. North Carolina
has authorized different agents to defend its practical inter-
ests precisely because, thanks to how it has structured its
government, each may be expected to vindicate different
points of view on the State’s behalf. For a federal court to
presume a full overlap of interests when state law more
nearly presumes the opposite would make little sense and
do much violence to our system of cooperative federalism.
In cases like ours, state agents may pursue “related” state
interests, but they cannot be fairly presumed to bear “iden-
tical” ones. Trbovich, 404 U. S., at 538.
In the end, to resolve this case we need not decide
whether a presumption of adequate representation might
sometimes be appropriate when a private litigant seeks to
defend a law alongside the government or in any other cir-
cumstance. We need only acknowledge that a presumption
of adequate representation is inappropriate when a duly
authorized state agent seeks to intervene to defend a state
law. In its en banc decision, the Fourth Circuit reasoned
that “a proposed intervenor’s governmental status makes a
heightened presumption of adequacy more appropriate, not
less.” 999 F. 3d, at 933; accord, Planned Parenthood of Wis.,
Inc. v. Kaul, 942 F. 3d 793, 801 (CA7 2019). But, respect-
fully, that gets things backward. Any presumption against
intervention is especially inappropriate when wielded to
displace a State’s prerogative to select which agents may
defend its laws and protect its interests. Normally, a
State’s chosen representatives should be greeted in federal
court with respect, not adverse presumptions. If the inter-
venor in Trbovich faced only a “minimal” burden, it cannot
be that duly designated state agents seeking to vindicate
16 BERGER v. NORTH CAROLINA STATE
CONFERENCE OF THE NAACP
Opinion of the Court
state law should have to clear some higher hurdle.
Setting aside the lower courts’ erroneous presumptions,
the proper resolution of today’s case follows quickly. Cast-
ing aspersions on no one, this litigation illustrates how di-
vided state governments sometimes warrant participation
by multiple state officials in federal court. See 999 F. 3d, at
939–941 (Wilkinson, J., dissenting). Recall just some of the
facts of this case. See Parts I–B and I–C, supra. When con-
fronted with a motion for a preliminary injunction, the
Board declined to offer expert-witness affidavits in support
of S. B. 824, even though its opponent offered many and the
legislative leaders sought to supplement the record with
their own. After the District Court issued its (ultimately
overturned) injunction, the Board declined to seek a stay.
That tactical choice, motivated by the Board’s overriding
concern for stability and certainty, meant that the State
could not enforce its new law during a statewide election.
Throughout, Board members have been appointed and po-
tentially removable by a Governor who vetoed S. B. 824 and
who filed his own briefs in this litigation calling the law
“unconstitutional” and arguing that it “should never go into
effect.” See supra, at 6. And at all times, the Board has
been represented by an attorney general who, though no
doubt a vigorous advocate for his clients’ interests, is also
an elected official who may feel allegiance to the voting pub-
lic or share the Board’s administrative concerns.
The legislative leaders seek to give voice to a different
perspective. Their “primary objective” is not clarifying
which law applies. See supra, at 5. They are not burdened
by misgivings about the law’s wisdom. If allowed to inter-
vene, the legislative leaders say, they will focus on defend-
ing the law vigorously on the merits without an eye to cross-
cutting administrative concerns. And, they add, the
differences between their interest and the Board’s in this
case demonstrate why state law empowers them to partici-
pate in litigation over the validity of state legislation—alive
Cite as: 597 U. S. ____ (2022) 17
Opinion of the Court
as it is to the possibility that different branches of govern-
ment may seek to vindicate different and valuable state in-
terests. Perhaps recognizing all this, the Fourth Circuit it-
self allowed the legislative leaders to intervene in the
appeal from the District Court’s preliminary injunction rul-
ing. The same result should follow here.
By way of reply, the NAACP—but not the Board—worries
that allowing the legislative leaders to intervene could
“make trial management impossible.” Brief for NAACP Re-
spondents 26; but see Tr. of Oral Arg. 64 (noting that the
Board has “no problem litigating alongside” the legislative
leaders). We are not insensitive to the concern. In some
other case, a proliferation of motions to intervene may be a
cause for caution. At some point, too, it may be that the
interests of existing parties will come to overlap fully with
the interests of any remaining proposed intervenor.
But that case is not this case. Not only do the legislative
leaders bring a distinct state interest to bear on this litiga-
tion. No one has suggested that a cascade of motions lies
on the horizon here. Recall that the NAACP initially
named the Governor as a defendant. Absent his eventual
dismissal from this litigation, the Governor might have
been able to hire his own outside counsel while the attorney
general continued to represent the Board. See Martin, 320
N. C., at 547–548, 359 S. E. 2d, at 480. Introducing the leg-
islative leaders and their counsel after the Governor’s de-
parture may not represent a neat one-for-one swap. But
litigation on this scale is hardly inconsistent with what the
Board and the NAACP originally anticipated.
Nor is it unusual. In matters ranging from civil-rights
actions to suits testing the constitutionality of state or fed-
eral legislation, federal courts routinely handle cases in-
volving multiple officials sometimes represented by differ-
ent attorneys taking different positions. See, e.g., Whole
Woman’s Health v. Jackson, 595 U. S. ___ (2021); Brnovich,
594 U. S. ___; United States v. Windsor, 570 U. S. 74418 BERGER v. NORTH CAROLINA STATE
CONFERENCE OF THE NAACP
Opinion of the Court
(2013); Metro Broadcasting, Inc. v. FCC, 497 U. S. 547(1990); Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam).
This Court even hears cases in which officials from a single
State have sued each other in federal court. See, e.g., Vir-
ginia Office for Protection and Advocacy v. Stewart, 563
U. S. 247 (2011). Whatever additional burdens adding the
legislative leaders to this case may pose, those burdens fall
well within the bounds of everyday case management.*
*
Through the General Assembly, the people of North Car-
olina have authorized the leaders of their legislature to de-
fend duly enacted state statutes against constitutional
challenge. Ordinarily, a federal court must respect that
kind of sovereign choice, not assemble presumptions
against it. Having satisfied the terms of Federal Rule of
Civil Procedure 24(a)(2), North Carolina’s legislative lead-
ers are entitled to intervene in this litigation. The judg-
ment of the Court of Appeals for the Fourth Circuit is
Reversed.
——————
*The parties disagree whether our review of this case should be gov-
erned by a de novo or abuse-of-discretion standard. We find it unneces-
sary to resolve that question because, even under the latter and more
forgiving standard, a misunderstanding of applicable law generally con-
stitutes reversible error. See Cooter & Gell v. Hartmarx Corp., 496 U. S.
384, 405 (1990). And here the lower courts erred as a matter of law at
both relevant steps of the Rule 24(a)(2) analysis, first by failing to afford
due respect to North Carolina’s law designating the legislative leaders
as its agents in litigation of this sort, and then by “setting the [interven-
tion] bar . . . too high.” 999 F. 3d 915, 945 (CA4 2021) (Quattlebaum, J.,
dissenting). Likewise, because we hold that the legislative leaders are
entitled to intervene as a matter of right under Rule 24(a)(2), we need
not decide their alternative request for permissive intervention under
Rule 24(b).
Cite as: 597 U. S. ____ (2022) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–248
_________________
PHILIP E. BERGER, ET AL., PETITIONERS v. NORTH
CAROLINA STATE CONFERENCE OF THE
NAACP, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[June 23, 2022]
JUSTICE SOTOMAYOR, dissenting.
When an individual or entity moves to intervene in a
pending lawsuit under Federal Rule of Civil Procedure
24(a)(2), a federal court is not authorized to grant the mo-
tion if an existing party to the case adequately represents
the movant’s interests. Today, however, the Court holds
that two leaders of the North Carolina General Assembly
are entitled to intervene as a matter of right to represent
the State’s interest in defending the constitutionality of
North Carolina law, even though that interest is already
being ably pursued on the State’s behalf by an existing state
party to the litigation. The Court’s decision is wrong for two
reasons. First, the Court goes astray by creating a pre-
sumption that a State is inadequately represented in fed-
eral court unless whomever state law designates as a
State’s representative is allowed to intervene, even where
the interests that the intervenors seek to represent are
identical to those of an existing party. That presumption of
inadequacy improperly permits state law, as opposed to fed-
eral law, to determine whether an existing party ade-
quately represents a particular interest. Second, the Court
errs by implying that the attorney general’s defense of the
constitutionality of the voting law at issue here fell below a
minimal standard of adequacy. I respectfully dissent.
2 BERGER v. NORTH CAROLINA STATE
CONFERENCE OF THE NAACP
SOTOMAYOR, J., dissenting
I
The underlying dispute in this case concerns the consti-
tutionality of North Carolina’s voter-identification law,
Senate Bill 824 (S. B. 824), enacted in 2018. The North Car-
olina State Conference of the NAACP (NAACP respond-
ents) sued members of the North Carolina State Board of
Elections (state respondents) and the Governor in Federal
District Court, alleging that the law violated the Four-
teenth and Fifteenth Amendments and §2 of the Voting
Rights Act by, among other things, discriminating against
Black and Latino voters. The state attorney general ap-
peared as counsel to represent the Governor and state re-
spondents. See N. C. Gen. Stat. Ann. §114–2 (2021)
(providing that the attorney general has a “duty” “to appear
for the State” in any matter “in which the State may be a
party or interested” and to “represent all State depart-
ments, agencies, institutions, commissions, bureaus or
other organized activities of the State”). NAACP respond-
ents also filed a parallel challenge to S. B. 824 in state court.
See Holmes v. Moore, No. 18–CV–15292 (Super. Ct. Wake
Cty., N. C.).
Shortly after the federal suit was filed, Philip E. Berger,
the president pro tempore of the North Carolina Senate, and
Timothy K. Moore, the speaker of the North Carolina House
of Representatives (petitioners here), filed a motion to in-
tervene “on behalf of the General Assembly.” App. 55. They
sought to intervene as of right under Federal Rule of Civil
Procedure 24(a)(2), claiming a “significantly protectable in-
terest in the validity of S.B. 824.” App. 61. Petitioners
cited, among other things, a state statute conferring upon
them standing to intervene on behalf of the General Assem-
bly in cases challenging state law. Id., at 61–62 (citing
N. C. Gen. Stat. Ann. §1–72.2). In the alternative, petition-
ers sought permissive intervention under Federal Rule of
Civil Procedure 24(b).
The District Court denied the motion without prejudice,
Cite as: 597 U. S. ____ (2022) 3
SOTOMAYOR, J., dissenting
explaining that petitioners lacked “a significantly protecta-
ble interest in . . . defending the constitutionality of S.B.
824 sufficient to warrant a right to intervene under Rule
24(a)(2)” because the Governor and state respondents re-
mained in the suit and were adequately defending the chal-
lenged law. App. to Pet. for Cert. 168. The court also rea-
soned that allowing petitioners to intervene would “ ‘hinder,
rather than enhance, judicial economy’ ” and would “ ‘unnec-
essarily complicate and delay’ the various stages of this
case,” including discovery, dispositive motions, and trial.
Id., at 180. The court granted petitioners’ motion to partic-
ipate in the suit as amici, however, and assured petitioners
that they could renew their motion to intervene if the attor-
ney general, as counsel for the existing state parties, “de-
clined to defend the lawsuit.” Id., at 157.1 Petitioners did
not appeal. Shortly thereafter, the District Court granted
the Governor’s motion to dismiss him from the suit. The
attorney general continued representing state respondents
in the litigation.
Six weeks after the District Court denied their original
intervention motion, petitioners filed a renewed motion,
again seeking both to intervene as a matter of right and
permissively. Petitioners primarily reiterated arguments
made in their first motion for intervention, adding that this
Court’s decision in Virginia House of Delegates v. Bethune-
Hill, 587 U. S. ___ (2019), “clarified” the interests they
sought to represent. App. 159. They also asserted that the
attorney general’s conduct in the parallel state-court litiga-
tion, in which petitioners were codefendants, supported pe-
titioners’ argument for intervention. Specifically, petition-
ers argued that the attorney general moved to dismiss five
of six claims in the state-court litigation, but not the sixth;
failed to defend against NAACP respondents’ motion for a
——————
1 Petitioners submitted an amicus brief supporting state respondents’
opposition to NAACP respondents’ motion for a preliminary injunction.
4 BERGER v. NORTH CAROLINA STATE
CONFERENCE OF THE NAACP
SOTOMAYOR, J., dissenting
preliminary injunction; and “did not seriously engage” in
discovery. Id., at 164.
The District Court again denied the motion, explaining
that it was “abundantly clear that [state respondents are]
actively and adequately defending this lawsuit.” App. to
Pet. for Cert. 189. The court recounted that state respond-
ents had “consistently ‘denied all substantive allegations of
unconstitutionality’ in this case” and had filed an “expan-
sive” brief opposing NAACP respondents’ motion for a pre-
liminary injunction on the merits. Ibid. The court also re-
jected petitioners’ argument that the attorney general’s
conduct in the pending state-court litigation was inade-
quate. The court explained that the attorney general’s de-
cision not to move to dismiss the sixth state-court claim in
that separate litigation “fell well within the range of rea-
sonable litigation strategies”; that the attorney general se-
cured reversal of the state-court preliminary injunction on
appeal; and that the attorney general “ ‘participated in ex-
tensive fact discovery’ ” in the state-court litigation. Id., at
191, 192. The court therefore found “no sound basis on
which to speculate . . . that [state respondents] and [the]
Attorney General w[ould] abandon their duty to defend S.B.
824 in this case,” given that, by all appearances, they had
fully executed that duty in both the federal- and state-court
litigation thus far. Id., at 193.
The District Court also rejected petitioners’ request for
permissive intervention. In the court’s view, petitioners’
contentions in the federal litigation, including their re-
peated skepticism of state respondents’ ability to defend
state law vigorously, demonstrated that intervention
“would only distract from the pressing issues in this case.”
Id., at 193–194.
Over a dissent by Judge Harris, the Court of Appeals va-
cated the District Court’s order and remanded for reconsid-
eration of petitioners’ request to intervene. The Court of
Cite as: 597 U. S. ____ (2022) 5
SOTOMAYOR, J., dissenting
Appeals voted to take the case en banc, however, and af-
firmed the District Court’s denial of intervention.
The en banc court began by stressing that its jurisdiction
was limited to reviewing the order from which petitioners
had chosen to appeal. Because petitioners had not appealed
the District Court’s denial of their first intervention motion
seeking to “represen[t] the General Assembly’s ‘institu-
tional interest’ in enforcement of S.B. 824,” the Court of Ap-
peals determined it could not review petitioners’ claim that
they were representing that particular institutional inter-
est. 999 F. 3d 915, 926 (CA4 2021). The en banc court in-
stead addressed petitioners’ argument that they were man-
datorily entitled to represent the interest of the State in
defending the constitutionality of S. B. 824.
In its merits analysis, the en banc court observed that
Rule 24(a)(2) contains several requirements, including that
a proposed intervenor demonstrate both “ ‘an interest in the
subject matter of the action’ ” and “ ‘that the [proposed in-
tervenor’s] interest is not adequately represented by exist-
ing parties to the litigation.’ ” Id., at 927 (quoting Fed. Rule
Civ. Proc. 24(a)(2)). The court noted that petitioners had
not asked the District Court and the Court of Appeals to
consider whether state law was relevant to Rule 24(a)(2)’s
adequacy requirement, as opposed to its interest require-
ment. See 999 F. 3d, at 930, n. 3. The court concluded that
N. C. Gen. Stat. Ann. §1–72.2, the state statute authorizing
petitioners to intervene in cases challenging state law, bore
on only the interest requirement. The court explained that
“[a] state’s policy judgment about the value of legislative in-
tervention may bestow a protectable interest in certain
court cases, but it does not override [a federal court’s] nor-
mal standards for evaluating the adequacy of existing rep-
resentation in those cases.” 999 F. 3d, at 929, n. 3 (empha-
sis added).
The court assumed (as to the former requirement) that
petitioners had established a protectable interest in the
6 BERGER v. NORTH CAROLINA STATE
CONFERENCE OF THE NAACP
SOTOMAYOR, J., dissenting
subject matter of the litigation, but held (as to the latter
requirement) that this “purported interest in defending
S.B. 824 on behalf of the State of North Carolina” was “ad-
equately represented by existing parties to the litigation.”
Id., at 927. Accordingly, the court concluded that petition-
ers had “no right to intervene in federal court under Rule
24(a)(2).” Ibid.
This Court granted certiorari. 595 U. S. ___ (2021).
II
At the heart of this case is Rule 24(a)(2), which governs
intervention as of right. As relevant here, Rule 24(a)(2) pro-
vides that a court “must permit anyone to intervene” who,
(1) “[o]n timely motion,” (2) “claims an interest relating to
the property or transaction that is the subject of the action,
and is so situated that disposing of the action may as a prac-
tical matter impair or impede the movant’s ability to protect
its interest,” (3) “unless existing parties adequately repre-
sent that interest.” This case requires the Court to address
how state laws affect mandatory intervention under Rule
24(a)(2).
I begin with points of agreement: The Court and I agree
that “States may organize themselves in a variety of ways.”
Ante, at 9; see Bethune-Hill, 587 U. S., at ___–___ (slip op.,
at 4–5) (contrasting Virginia’s choice to vest “[a]uthority
and responsibility for representing the State’s interests in
civil litigation . . . exclusively with the State’s Attorney
General” with other States’ decisions to authorize other
agents “to litigate on the State’s behalf ”). We agree that a
State is free to designate who will represent it in federal
court. See Hollingsworth v. Perry, 570 U. S. 693, 710 (2013)
(observing that although “[t]hat agent is typically the
State’s attorney general,” States may make a different
choice); see also Planned Parenthood of Wis., Inc. v. Kaul,
942 F. 3d 793, 802 (CA7 2019) (“[W]e can see no reason why
Cite as: 597 U. S. ____ (2022) 7
SOTOMAYOR, J., dissenting
a federal court would bat an eye if a state required its at-
torney general to withdraw from his representation and al-
low another entity, including a legislature, to take over a
case”). We also agree that state law can create a protectable
interest in the resolution of a federal lawsuit. See Maine v.
Taylor, 477 U. S. 131, 137 (1986) (“[A] State clearly has a
legitimate interest in the continued enforceability of its own
statutes”).2
I part ways with the Court because it is clear that Rule
24(a)(2) does not give a State the right to have multiple par-
ties represent the same interest. Rather, Rule 24(a)(2) ex-
plicitly authorizes additional parties to intervene in pend-
ing litigation only if their interests are not adequately
represented by an existing party.
The Court instead concludes that the undisputed princi-
ples discussed above establish a presumption that a State’s
interests are not adequately represented “if [any of] its duly
authorized representatives are excluded from participating
in federal litigation challenging state law.” Ante, at 9 (stat-
ing that “federal courts should rarely question that a State’s
interests will be practically impaired or impeded” in these
circumstances). In the Court’s view, because North Caro-
lina law provides that “[t]he Speaker of the House of Rep-
resentatives and the President Pro Tempore of the Senate”
“shall jointly have standing to intervene on behalf of the
General Assembly as a party in any judicial proceeding
challenging a North Carolina statute or provision of the
North Carolina Constitution,” N. C. Gen. Stat. Ann. §1–
72.2(b), “a federal court should find the interest require-
ment of Rule 24(a)(2) satisfied,” ante, at 11. The Court so
——————
2 We also agree that there is no need to decide whether a presumption
of adequate representation is sometimes appropriate, ante, at 15, or what
standard of review governs our analysis, ante, at 18, n. I disagree, how-
ever, with the Court’s conclusion that the courts below erred under any
standard and that reversal is required.
8 BERGER v. NORTH CAROLINA STATE
CONFERENCE OF THE NAACP
SOTOMAYOR, J., dissenting
holds despite the fact that state respondents already repre-
sent the State’s interests in this litigation in a manner that
the District Court found adequate, and where the attorney
general’s defense of the constitutionality of the voter-iden-
tification law has thus far proved successful.
The Court’s presumption of inadequacy is novel. Neither
petitioners nor the Court identify a single precedent in
which a state actor was entitled to intervene as of right to
defend a statute that another state actor already was de-
fending. Rather, the issue in all cases the Court cites was
whether any state official would be allowed to defend a
State’s interest when an official charged with doing so de-
clined to do so. Cf. Cameron v. EMW Women’s Surgical
Center, P. S. C., 595 U. S. ___, ___, n. 5 (2022) (slip op., at
10, n. 5) (allowing Kentucky attorney general to intervene
in federal appellate proceeding “to defend Kentucky’s inter-
ests” once “no other official [was] willing to do so”); Karcher
v. May, 484 U. S. 72, 75, 81–82 (1987) (holding that two
state legislators could intervene to defend the constitution-
ality of state law after the attorney general declined to do
so); Bethune-Hill, 587 U. S., at ___ (slip op., at 4) (rejecting
argument that the Virginia House of Delegates and its
Speaker, who intervened specifically to represent their
“own” interests rather than those of the State as a whole,
could displace the attorney general as representative of the
State); see also Hollingsworth, 570 U. S., at 707, 713 (hold-
ing that proponents of a ballot initiative who “ha[d] no role
. . . in the enforcement of ” the initiative and were not
“agents of the State” lacked standing to defend it on ap-
peal).
None of these precedents establish that state law can re-
quire a federal court to allow additional state actors to in-
tervene when another state actor is already ably and fully
representing the State’s interests in the litigation. To the
contrary, it is well settled that the question whether an in-
terest is being “adequately represented” is one of federal
Cite as: 597 U. S. ____ (2022) 9
SOTOMAYOR, J., dissenting
law, not state law. See 7C C. Wright, A. Miller, & M. Kane,
Federal Practice and Procedure §1905 (3d ed. Supp. 2022)
(Wright, Miller, & Kane) (citing cases and observing that
“[i]t is wholly clear that the right to intervene in a civil ac-
tion pending in a United States District Court is governed
by Rule 24 and not by state law”). Petitioners themselves,
until they arrived at this Court, never adopted the view
that state law can supplant a federal court’s responsibility
to decide adequacy of representation in an individual case.
The Court’s conclusion that state law can dictate what
counts as “adequate” representation also suffers from prac-
tical infirmities. If state law can require a federal court to
allow a second state actor to intervene to represent a differ-
ent “perspective,” ante, at 16, what is to stop a State from
designating 3, 4, or 10 or more officials as necessary parties
to suits challenging state law? The Court acknowledges
this concern but offers no limiting principle grounded in
Rule 24(a)(2). Ante, at 17. That is because it cannot: Under
the Court’s logic, a federal court would have no choice but
to allow all 10 or more state officials to intervene.
This result contravenes Rule 24(a)(2) and the practical
realities of litigation that it reflects. Federal law gives dis-
trict courts responsibility to assess, in the first instance, the
adequacy of a party’s representation because those courts
are most familiar with that representation and are respon-
sible for managing their dockets and streamlining proceed-
ings. Rule 24(a)(2) thus does not require district courts to
allow intervention where interests are adequately repre-
sented because such intervention would be duplicative and
inefficient. This Rule accounts for the fact that mandatory
intervention imposes costs on the original parties, on the
court, and on all others whose interests depend on timely
resolution of a given case. Forcing federal courts “to accom-
modate [a] cacophony of parties,” 999 F. 3d, at 934, as the
Court’s logic today requires, will result in an “intractable
procedural mess,” leaving district courts with “no basis for
10 BERGER v. NORTH CAROLINA STATE
CONFERENCE OF THE NAACP
SOTOMAYOR, J., dissenting
divining the true position of the [State] on issues like the
meaning of state law, or even for purposes of doctrines like
judicial estoppel.” Kaul, 942 F. 3d, at 801–802; see New
Jersey v. New York, 345 U. S. 369, 373 (1953) (per curiam)
(declining to be drawn into “intramural dispute” within a
State).
It is difficult to overstate the burden the Court’s holding
will foist on district courts. Each intervenor will be entitled
to file its own brief concerning every motion and will be en-
titled to its own discovery. Even when state agents’ posi-
tions align, this multitude of parties will clog federal courts
and delay the administration of justice.3 When state
agents’ positions diverge, courts will also be put in the un-
enviable position of determining “which of [a State’s] repre-
sentatives . . . better represents it.” 999 F. 3d, at 934. Out
of respect for federalism, if nothing else, we should not in-
terpret state law to hijack federal courts’ ability to manage
litigation involving States. See Virginia Office for Protec-
tion and Advocacy v. Stewart, 563 U. S. 247, 272 (2011)
(ROBERTS, C. J., dissenting) (noting the “indignity” suffered
by a State when “a federal judge . . . decide[s] an internal
state dispute”).
III
Aided by its new presumption of inadequacy, the Court
concludes that state respondents inadequately represented
petitioners’ stated interests. The Court states that in so
holding, it “[c]ast[s] aspersions on no one.” Ante, at 16. In
the Court’s view, however, petitioners (unlike state re-
spondents and their counsel, the attorney general) “are not
——————
3 This case is the perfect example. The District Court scheduled trial
for January 2021, but postponed it to January 2022 pending resolution
of petitioners’ appeal of their second motion for intervention. See 999
F. 3d, at 923. After certiorari was granted, the District Court stayed trial
pending this Court’s disposition of the case. Now that the District Court
will be obligated to allow petitioners to intervene, trial inevitably will be
delayed much further.
Cite as: 597 U. S. ____ (2022) 11
SOTOMAYOR, J., dissenting
burdened by misgivings about the law’s wisdom,” and
therefore should be allowed to intervene to “give voice to a
different perspective.” Ibid. The implication of the Court’s
holding is clear: The attorney general’s performance fell
short of representing adequately the State’s interests in the
constitutionality of its law, and for that reason, petitioners
should be allowed to intervene.
This is simply wrong. As a preliminary matter, petition-
ers and state respondents share the same interest: ensuring
the validity and enforcement of S. B. 824. Cf. Trbovich v.
Mine Workers, 404 U. S. 528, 538–539 (1972) (allowing in-
tervention as of right where an intervenor’s interests as an
individual union member were “not identical” to those of
the existing party in the suit, the Secretary of Labor, who
sought to represent the public interest). Here, state re-
spondents explain that they “represen[t] . . . the State’s in-
terest in defending its laws.” Brief for State Respondents
18. Their counsel, the attorney general, is required to do
the same under North Carolina law. See N. C. Gen. Stat.
Ann. §114–2. Identically, petitioners represent that they
seek to defend “the State’s vital interest in defending the
constitutionality of North Carolina’s election laws.” Brief
for Petitioners 15–16. Indeed, petitioners cannot now seek
to represent any unique interest of the General Assembly
in the litigation because they abandoned that argument by
failing to appeal the District Court’s original order denying
intervention on that basis. By their own admission, then,
petitioners seek only to represent the State’s interest in de-
fending state law, an interest that state respondents al-
ready represent.
The Court insists that petitioners’ “perspective” never-
theless differs from that of state respondents, by focusing
on “defending the law vigorously on the merits without an
eye to crosscutting administrative concerns” such as obtain-
ing guidance for the administration of upcoming elections.
12 BERGER v. NORTH CAROLINA STATE
CONFERENCE OF THE NAACP
SOTOMAYOR, J., dissenting
Ante, at 16; see Brief for Petitioners 48 (“The differing per-
spectives of Petitioners and State Board Respondents are a
product of their different relationships to the State”). The
Court’s position rests in part on the assumption that lead-
ers of the General Assembly have a unique interest that
should be represented in the litigation. As noted, however,
the case’s procedural posture forecloses that argument be-
cause petitioners forfeited it.4
In any event, the difference in perspective the Court per-
ceives boils down only to a disagreement over trial strategy.
As the Court rightly concedes, the State has a strong inter-
est in the orderly administration of its elections. See ante,
at 16 (acknowledging state respondents’ interest in “stabil-
ity and certainty” in an upcoming election). That is not,
however, the only state interest that state respondents, rep-
resented by the attorney general, sought to defend. The at-
torney general has insisted all along that the interests he
seeks to represent, and indeed is required to represent un-
der state law, include defending the constitutionality of
North Carolina laws like the voter-identification law at is-
sue here. See N. C. Gen. Stat. Ann. §114–2. These state
interests are not mutually exclusive. The attorney gen-
eral’s choice to emphasize the State’s interest in election ad-
ministration at a particular stage of the litigation, while
simultaneously maintaining a firm position on the consti-
tutionality of S. B. 824, was merely a choice about litigation
strategy. It is a choice with which petitioners might disa-
gree, but it does not render state respondents’ representa-
tion inadequate. See 7C Wright, Miller, & Kane §1909 (“A
mere difference of opinion concerning the tactics with which
——————
4 The argument that petitioners may intervene to represent a different
“perspective” might have been a better fit for permissive intervention
under Rule 24(b), rather than intervention as a matter of right under
Rule 24(a)(2). Petitioners, however, did not ask this Court to review the
District Court’s conclusion that they were not entitled to permissive in-
tervention.
Cite as: 597 U. S. ____ (2022) 13
SOTOMAYOR, J., dissenting
the litigation should be handled does not make inadequate
the representation of those whose interests are identical
with that of an existing party”); accord, Kaul, 942 F. 3d, at
810–811 (Sykes, J., concurring); Daggett v. Commission on
Governmental Ethics and Election Practices, 172 F. 3d 104,
112 (CA1 1999).
Properly understood, the attorney general’s representa-
tion of state respondents satisfies any standard of ade-
quacy. As the District Court explained, the attorney gen-
eral “actively and adequately defend[ed] this lawsuit.” App.
to Pet. for Cert. 189. He “consistently denied all substan-
tive allegations of unconstitutionality in this case.” Ibid.(internal quotation marks omitted). And he moved to dis-
miss the suit on federalism grounds, filed an “expansive
brief ” opposing NAACP respondents’ motion for a prelimi-
nary injunction on the merits, and has moved for summary
judgment on all claims. Ibid.The Court faults the attorney general for emphasizing
“administrative concerns” in his brief on the merits and for
not offering expert reports to support his opposition to a
preliminary injunction. See ante, at 16. Petitioners also
take issue with the attorney general’s decision not to seek
a stay of the District Court’s preliminary injunction pend-
ing appeal. Brief for Petitioners 12, 50. But these are pre-
cisely the sort of strategic decisions that government attor-
neys make every day; in fact, petitioners themselves
declined to seek a stay in the parallel litigation in state
court. The Court’s retrospective criticism of the attorney
general’s litigation strategy is insufficient to establish that
state respondents inadequately represented the State’s in-
terests. See Saldano v. Roach, 363 F. 3d 545, 555 (CA5
2004) (“Simply because the [intervenor] would have made a
different decision does not mean that the Attorney General
is inadequately representing the State’s interest—and
hence, the [intervenor’s] claimed interest—especially since
14 BERGER v. NORTH CAROLINA STATE
CONFERENCE OF THE NAACP
SOTOMAYOR, J., dissenting
state law specifically gives the Attorney General the discre-
tion to make these kinds of decisions”).
If any doubt remains, the results delivered by the attor-
ney general’s representation should eliminate it. The attor-
ney general sought and secured on appeal a reversal of the
District Court’s preliminary injunction. He also won the
Governor’s dismissal from the suit. It is hardly persuasive
to flyspeck the attorney general’s litigation approach when
that very approach has vindicated the State’s interests.
Finally, the Court alludes to petitioners’ argument that
state respondents’ representation of petitioners’ interests
was inadequate because the Governor (who vetoed S. B. 824
and personally opposed the law) exercised appointment au-
thority over state respondents. Ante, at 16. The Court is
right not to fully embrace this argument, which implies
that the attorney general and the career professionals in his
office are incapable of executing their statutory duty to rep-
resent North Carolina in litigation and defend its interests.
See N. C. Gen. Stat. Ann. §114–2. Petitioners’ “startling
accusation” flies in the face of the presumption that public
officials can be trusted to exercise their official duties and
overlooks the attorney general’s vigorous advocacy to date.
999 F. 3d, at 937; see United States v. Chemical Founda-
tion, Inc., 272 U. S. 1, 15 (1926) (courts should “presume
that [public officials] have properly discharged their official
duties”). As the Court of Appeals explained, that the Gov-
ernor or the attorney general “may have expressed policy
views at odds with S.B. 824 in the past is no ground for a
federal court to infer that [the attorney general] would ab-
dicate his official duty to the State by subterfuge, mounting
a sham defense of the statute.” 999 F. 3d, at 937. To sug-
gest otherwise does a grave “disservice to the dignified work
of government lawyers who each day put aside their own
policy and political preferences to advocate dutifully on be-
half of their governments and the general public.” Ibid.
Cite as: 597 U. S. ____ (2022) 15
SOTOMAYOR, J., dissenting
In short, the Court’s conclusion that state respondents in-
adequately represented petitioners’ interests is a fiction
that the record does not support. In addition, the Court’s
armchair hypothesizing improperly displaces the District
Court’s firsthand experience in managing this litigation.
* * *
States are entitled to structure themselves as they wish
and to decide who should represent their interests in fed-
eral litigation. State law may not, however, override the
Federal Rules of Civil Procedure by requiring federal courts
to allow intervention by multiple state representatives who
all seek to represent the same state interest that an exist-
ing state party is already capably defending. Because the
Court concludes otherwise, I respectfully dissent.