New York and other states with Democratic attorneys general have two options with a new, solidly conservative judge on the U.S. Supreme Court: play defense or offense.
Over the past decade, the New York state Attorney General’s Office has increasingly leaned toward the latter. Use of that strategy has escalated since President Donald Trump took office.
But now New York finds itself in a unique position. All three branches of the federal government will now be solidly controlled by Republican or conservative-minded officials if the U.S. Senate confirms Judge Brett Kavanaugh to the nation’s highest court.
Outgoing Justice Anthony Kennedy has often been a vote on the court that divided his more liberal and conservative colleagues. He was, in the very definition of the term, a swing vote in some cases, though he did not like that label.
New York’s approach to litigation going forward could very well depend on whether Kavanaugh takes a similar approach on the court, which few on the left think he will.
“Then it becomes what kind of conservative court does this become?” said Jim Malatras, president of the Rockefeller Institute of Government, a public policy research institute in Albany. “If it becomes the kind of court that lets states do what they want to do, I don’t think you’ll see much of a quibble.”
Malatras has a unique perspective on the state’s litigation efforts. He was the executive director for state policy and legislative affairs in the Attorney General’s Office when Gov. Andrew Cuomo held the post. He moved with Cuomo to the governor’s office, where he served as a top policy official and eventually the director of state operations.
The tables have turned for New York under the Trump presidency, Malatras said. That partly has to do with values and party control.
“Trump is very much like the Obama administration when it comes to aggressively imposing federal order on the states,” Malatras said. But the state Attorney General’s Office was not nearly as active during Obama’s presidency.
That was different for other states. Scott Pruitt, the former administrator of the U.S. Environmental Protection Agency under Trump, garnered national attention for legal actions he brought against the Obama administration as state attorney general in Oklahoma. Governing magazine even called him ”America’s sue-happy state AG” in 2015.
Three years later, among the country’s “sue-happy” state attorneys general is New York’s own Barbara Underwood. The office has opened more than 100 legal actions against the Trump administration since the beginning of 2017.
How does Kavanaugh fit into all of this? That really depends on what kind of ‘conservative’ he plans to be on the court, Malatras said. In one scenario that fairs better for New York, Kavanaugh could hold the conservative ideology that many rights should be left up to the states.
In that case, a state attorney general in a blue state like New York could advocate for certain laws to be changed by their state Legislature rather than through litigation.
Take abortion for example. If a case appeared before the Supreme Court that, in some way, overturned Roe v. Wade, but allowed states to pass their own abortion laws, a progressive attorney general may be active in state legislative efforts. Former Attorney General Eric Schneiderman was a frequent speaker at rallies for the Reproductive Health Act, a bill that would essentially codify Roe into state law.
A second scenario would be less ideal for New York’s attorney general. In that case, Kavanaugh would express a politically conservative ideology on the court. Sticking with the abortion example, if a case was before the court that not only reversed Roe but also upheld the life of a fetus, then a state attorney general would have fewer options.
“If this court becomes an activist court that says you have a fundamental right to life before the point of viability, the states can’t do anything because the Supreme Court is the law of the land,” Malatras said.
The possibility of an “activist court” is unlikely to stop New York’s attorney general from bringing litigation to federal courts, said Scott Wilson, a former senior adviser and special counsel to Schneiderman between 2011 and 2013. Wilson is now a partner at Boies Schiller Flexner in Manhattan.
“I think they have been and could be sensitive to the composition to the court,” Wilson said. “The New York Attorney General’s Office has a very sophisticated appeals bureau that until recently was headed by Barbara Underwood and I think like any good appellate office they are mindful of their audience, and their audience will have changed.”
There are also other avenues the state attorney general could take to influence litigation. Even if the venue of a case is outside New York, a state attorney general could become involved in litigation that would have a direct impact on residents of their home state.
“In all the different hypotheticals, nothing would stop the attorney general of New York from participating in a lawsuit that would either be in support of New York law or participating in the lawsuit against the more conservative possible ruling,” said Vin Bonventre, a professor at Albany Law School and expert on the Supreme Court.
A conservative Supreme Court is nothing new, Bonventre said. At most points in the court’s history, including the last decade, conservatives have been in control.
“There’s only been very, very few periods in the history of the court where it’s been liberal,” Bonventre said. “Every now and then the court issues a liberal decision, but that’s the exception to the rule.”
Underwood, for her part, said in a statement on Kavanaugh’s appointment that her office is not planning any changes to its litigation strategy in the immediate future.
“Either way, we must—and my office will—continue fighting for justice in the courts, while taking action here in New York to protect our values and rights that are under assault,” Underwood said.