State Amici, Collective Action, and the Development of Federalism Doctrine

State Attorneys General (SAG) have been individually and collectively active on many legal and regulatory fronts in recent years. One of those activities has been the filing of amicus curiae briefs in the United States Supreme Court, especially in cases impacting the States and federalism doctrine. Frequently SAGs will join in one amicus brief, and briefs signed by 40 or more states are not uncommon. This phenomenon has been the subject of attention by legal scholars and political scientists, but the normative jurisprudential significance of such briefs has not. In their opinions the Justices vary in how much legal weight, if any, they give such briefs. The issue is particularly acute in cases where significant numbers of states take a position by amicus brief against the apparent state interest and in favor of the federal or national interest. During the 2009 Term, for example, the Court held in McDonald v. City of Chicago that the Second Amendment’s individual right to bear arms applied to the states. Thirty-eight states filed an amicus brief supporting that application, which was noted and appeared to be given significance by the majority opinion. A dissent declined to give weight to that brief, and expressed puzzlement that SAGs would ask the Court to limit the regulatory options available to states. This article addresses the jurisprudential weight such briefs should be given by the Court. It first considers formalism and functionalism as paradigms for federalism doctrine, and discusses whether amicus briefs by SAGs are relevant at all under either viewpoint. It next focuses on those briefs that take a position against the apparent state interest, and addresses whether and to what extent that expressed position should be relied upon by the Court. The article concludes by arguing it is appropriate that such amici should play a role, albeit a limited one, in the development of federalism doctrine by the Court