As the October 2019 Supreme Court term approaches, be on the lookout for state attorneys general engaged in the art of “hidden nondefense”—in other words, filing amicus briefs that fail to disclose how their own state or local laws may be adversely impacted by the Supreme Court’s decision. We’re already seeing this phenomenon in the cases that will decide whether Title VII protects gay, lesbian and transgender people from employment discrimination. An amicus brief filed by 14 state attorneys general and the governor of Kentucky, for example, fails to mention that antidiscrimination laws in those states could be impacted if the Supreme Court adopts the brief’s argument that “[s]ex is, and has always been, understood as distinct from sexual orientation and gender identity.”

Hidden nondefense, identified by New York Law School Professor Lisa F. Grumet, was also notable in Janus v. American Federation of States, County, & Municipal Employees—what some have called the single most consequential Supreme Court ruling of 2018. In Janus, the Supreme Court invalidated an Illinois law that previously allowed unions to charge agency fees to public-sector employees who declined to join the union but still benefitted from the deals it bargained. The decision overturned 40 years of labor law in the United States and dramatically undermined the power of unions comprised of teachers, firefighters, police officers and other public employees.

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