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48 J. Legis. 1 (2021-2022)

handle is hein.journals/jleg48 and id is 1 raw text is: STATE ATTORNEYS GENERAL, POLITICAL LAWSUITS, AND THEIR COLLECTIVE VOICE IN THE INTER-INSTITUTIONAL CONSTITUTIONAL DIALOGUE Mark C. Miller* INTRODUCTION State attorneys general (or state AGs) are both legal and political actors, especially because almost all of them are elected officials. State attorneys general are also increasing their role in federal constitutional interpretation and federal policymaking more generally, using both law and politics to do so. The merger of politics and law is a long-standing American tradition. As Alexis de Tocqueville observed in the early 1800s, almost every legal issue in the U.S. eventually becomes a political issue, and almost every political one eventually becomes a legal one.1 By its very nature, constitutional interpretation in our society means making crucial political and public policy choices in addition to legal ones. Scholars who study both the U.S. Attorney General2 and the U.S. Solicitor General3 note that these positions require attention to both law and politics. Scholars who study state attorneys general have come to the same conclusion.4 For example, in his fairly early study of state *Mark C. Miller is a Professor of Political Science, former Chair of the Department of Political Science, and the Director of Clark University's Interdisciplinary Law & Society Program at Clark University in Worcester, Massachusetts. B.A. from Ohio Northern University; J.D. from George Washington University; Ph.D. from The Ohio State University. Miller served as the Judicial Fellow at the Supreme Court of the United States from 1999-2000, and he was a Congressional Fellow in 1995. During 2006-07, Miller was a Visiting Scholar at the Centennial Center for Public Policy of the American Political Science Association. During the spring of 2008, Miller was the Thomas Jefferson Distinguished Chair, a Fulbright Scholar to the American Studies Program and the History Department at Leiden University in the Netherlands. For the academic year 2014-15, Miller held the Distinguished Fulbright Bicentennial Chair in North American Studies at the University of Helsinki in Finland. Financial assistance for this project came in part from the Harrington Public Affairs Fund at Clark University. Special thanks go to Samuel Segal and Matthew O'Hara for all their help with this project. l.ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 99-102 (Eduardo Nolla ed., James T. Schleifer trans., Liberty Fund 2010). 2. See, e.g., CORNELL W. CLAYTON, THE POLITICS OF JUSTICE: THE ATTORNEY GENERAL AND THE MAKING OF LEGAL POLICY (1992); NANCY V. BAKER, CONFLICTING LOYALTIES: LAW AND POLITICS IN THE ATTORNEY GENERAL'S OFFICE, 1789-1990 (1992). 3. See, e.g., REBECCA MAE SALOKAR, THE SOLICITOR GENERAL: THE POLITICS OF LAW (1992); LINCOLN CAPLAN, THE TENTH JUSTICE: THE SOLICITOR GENERAL AND THE RULE OF LAW (1987); RICHARD L. PACELLE, JR., BETWEEN LAW & POLITICS: THE SOLICITOR GENERAL AND THE STRUCTURING OF RACE, GENDER, AND REPRODUCTIVE RIGHTS LITIGATION (2003); Peter N. Ubertaccio III, The Solicitor General: Learned in the Law and Politics, in EXPLORING JUDICIAL POLITICS 140-51 (Mark C. Miller ed., 2009). 4. See, e.g., Rorie L. Spill et al., Taking on Tobacco: Policy Entrepreneurship and the Tobacco Litigation, 54 POL. RSCH. Q. 605 (2001); Neal Devins & Saikrishna Bangalore Prakash, Fifty States, Fifty Attorneys General, and Fifty Approaches to the Duty to Defend, 124 YALE L.J. 2100 (2015); PAUL NOLETTE, 1

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