Cameron v. EMW Women’s Surgical Center, P. S. C.

P R E L I M I N A R Y P R I N T
Volume 595 U. S. Part 2
Pages 267–301
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
March 3, 2022
REBECCA A. WOMELDORF
reporter of decisions
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267
Syllabus
CAMERON, ATTORNEY GENERAL OF KENTUCKY v.
EMW
WOMEN’S SURGICAL CENTER, P. S. C., et al.
certiorari to the united states court of appeals for
the sixth circuit
No. 20–601. Argued October 12, 2021—Decided March 3, 2022
EMW Women's Surgical Center and two of its doctors fled a federal suit
seeking to enjoin enforcement of Kentucky House Bill 454, legislation
regulating the abortion procedure known as dilation and evacuation.
Named defendants in EMW's lawsuit included two Commonwealth off-
cials, the attorney general and the cabinet secretary for Health and
Family Services. EMW agreed to dismiss claims against the attorney
general without prejudice. The stipulation of dismissal specifed that
the attorney general's offce reserved “all rights, claims, and defenses
. . . in any appeals arising out of this action” and agreed to be bound by
“any fnal judgment . . . subject to any modifcation, reversal or vacation
of the judgment on appeal.” App. 28–30. The secretary remained in
the case and defended the challenged law. After a bench trial, the Dis-
trict Court held that HB 454 unconstitutionally burdens a woman's right
to an abortion and issued a permanent injunction against the law's
enforcement.
The secretary fled a notice of appeal. While the appeal was pending,
Kentucky elected a new attorney general, petitioner Daniel Cameron,
and elected the former attorney general, Andrew Beshear, Governor.
Governor Beshear appointed a new secretary for Health and Family
Services who continued the defense of HB 454 on appeal. Prior to oral
argument before the Sixth Circuit, Attorney General Cameron entered
an appearance as counsel for the new secretary. A divided Sixth Cir-
cuit panel affrmed the District Court's judgment. The secretary then
informed the attorney general's offce that the secretary would not fle
a petition for rehearing en banc or a petition for a writ of certiorari
challenging the Sixth Circuit panel's decision. Two days later, the at-
torney general moved to withdraw as counsel for the secretary and to
intervene as a party on the Commonwealth's behalf. The secretary did
not oppose that motion, but respondents did. The attorney general also
fled a petition for rehearing en banc within the 14-day deadline for an
existing party to seek rehearing. The Sixth Circuit denied the attorney
general's motion to intervene. This Court granted certiorari limited to
the question whether the Sixth Circuit should have permitted the attor-
ney general to intervene.

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v. EMW WOMEN'S SURGICAL
CENTER, P. S. C.
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Held: The Court of Appeals erred in denying the attorney general's motion
to
intervene. Pp. 274–282.
(a) This Court has jurisdiction to consider whether the attorney gen-
eral's motion to intervene should have been granted notwithstanding
respondents' contention that the motion was jurisdictionally barred.
See Arbaugh v. Y & H Corp., 546 U. S. 500, 506. Respondents concede
that a court of appeals generally has jurisdiction to consider a non-
party's motion to intervene in a pending appeal. But respondents as-
sert that a narrow subset of non-parties—those bound by the district
court judgment—must fle a timely notice of appeal to obtain appellate
review and may not circumvent applicable jurisdictional time limits by
fling a motion to intervene after the deadline for fling a notice of appeal
has passed. Applying this theory, respondents contend that because
the attorney general could have fled a notice of appeal but failed to do
so within the time allowed by law, his motion for intervention should be
treated like an untimely notice of appeal over which the Sixth Circuit
lacked jurisdiction. Pp. 274–276.
(1) No provision of law limits the jurisdiction of the courts of ap-
peals to entertain a motion for intervention fled by a non-party in this
way, even assuming that party can be bound by the judgment that is
appealed. Unless clear from its language, a statute or rule does not
impose a jurisdictional requirement. Henderson v. Shinseki, 562 U. S.
428, 439. Here, respondents cite no provision that deprives a court of
appeals of jurisdiction in the way they suggest, and no such supporting
language can be found in 28 U. S. C. § 2107, Federal Rules of Appellate
Procedure 3 and 4, or any other provision of law. P. 275.
(2) This Court refuses to adopt what would essentially be a categor-
ical claims-processing rule barring consideration of the attorney gener-
al's motion. When a non-party enters into an agreement to be bound
by a judgment in accordance with the agreement's terms, it is hard to
see why the non-party should be precluded from seeking intervention on
appeal if the agreement preserves that opportunity. Here, the attorney
general reserved “all rights, claims, and defenses . . . in any appeals
arising out of this action.” That easily covers the right to seek rehear-
ing en banc and the right to fle a petition for a writ of certiorari. And
that agreement makes clear that the judgment to which the attorney
general agreed to be bound was the judgment that emerged after all
appellate review concluded. Pp. 275–276.
(b) Turning to the question whether the Court of Appeals properly
denied the attorney general's motion to intervene, the Court notes that
no statute or rule provides a general standard to apply in deciding
whether intervention on appeal should be allowed. Guided by the “pol-
icies underlying intervention” in the district courts, Automobile Work-
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ers v. Scofeld, 382 U. S. 205, 217, n. 10, including the legal “interest”
that
a party seeks to “protect” through intervention on appeal, Fed.
Rule Civ. Proc. 24(a)(2), the Court concludes that the Sixth Circuit erred
in denying the attorney general's motion to intervene. Pp. 276–282.
(1) Resolution of a motion for permissive intervention is committed
to the discretion of the court before which intervention is sought, see
Automobile Workers, 382 U. S., at 217, n. 10; Fed. Rule Civ. Proc.
24(b)(1)(a). But a court fails to exercise its discretion soundly when it
“base[s] its ruling on an erroneous view of the law,” Cooter & Gell v.
Hartmarx Corp., 496 U. S. 384, 405, and that is what happened here.
The Sixth Circuit panel failed to account for the strength of the Ken-
tucky attorney general's interest in taking up the defense of HB 454
when the secretary elected to acquiesce. A State “clearly has a legiti-
mate interest in the continued enforceability of its own statutes,” Maine
v. Taylor, 477 U. S. 131, 137, and a State's opportunity to defend its laws
in federal court should not be lightly cut off. The importance of ensur-
ing that States have a fair opportunity to defend their laws in federal
court has been recognized by Congress. See 28 U. S. C. § 2403(b); Fed.
Rule Civ. Proc. 24(a)(1). These provisions—even if not directly applica-
ble in this case because the secretary remained a party—refect the
weighty interest that a State has in protecting its own laws. Respect
for state sovereignty must also take into account the authority of a
State to structure its executive branch in a way that empowers multiple
offcials to defend its sovereign interests in federal court. See Virginia
House of Delegates v. Bethune-Hill, 587 U. S. –––, –––. The unusual
course that this litigation took should not obscure the important consti-
tutional consideration at stake. Pp. 277–279.
(2) The panel also erred in its evaluation of the other factors that
bear on all applications for appellate intervention. The panel's assess-
ment of the timeliness of the attorney general's motion to intervene was
mistaken. While an important consideration, timeliness depends on the
circumstances, and the progression of the litigation is “not solely disposi-
tive.” NAACP v. New York, 413 U. S. 345, 366. Here, the most impor-
tant circumstance relating to timeliness is that the attorney general
sought to intervene “as soon as it became clear” that the Common-
wealth's interests “would no longer be protected” by the parties in the
case. United Airlines, Inc. v. McDonald, 432 U. S. 385, 394. Because
the attorney general's need to intervene did not arise until the secretary
ceased defending the state law, the timeliness of his motion should be
assessed in relation to that point in time. NAACP v. New York, 413
U. S. 345, distinguished. Pp. 279–281.
(3) The panel's fnding that granting intervention would prejudice
respondents was similarly fawed. While the attorney general's rehear-

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v. EMW WOMEN'S SURGICAL
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Syllabus
ing petition pressed an issue (third-party standing) not raised in the
secret
ary's appellate briefs, allowing intervention would not have neces-
sitated resolution of that issue. See, e. g., McDonald, 432 U. S., at 394.
Moreover, respondents' loss of its claimed expectations around election
of a Governor with a history of declining to defend abortion restrictions
is not cognizable as unfair prejudice in the sense relevant here.
Pp. 281–282.
831 Fed. Appx. 748, reversed and remanded.
Alito, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Thomas, Gorsuch, Kavanaugh, and Barrett, JJ., joined.
Thomas, J., fled a concurring opinion, post, p. 283. Kagan, J., fled an
opinion concurring in the judgment, in which Breyer, J., joined, post,
p. 288. Sotomayor, J., fled a dissenting opinion, post, p. 292.
Matthew F. Kuhn, Principal Deputy Solicitor General of
Kentucky, argued the cause for petitioner. With him on the
briefs were Barry L. Dunn, Deputy Attorney General, Vic-
tor B. Maddox, Associate Attorney General, and Brett R.
Nolan, Deputy Solicitor General.
Alexa Kolbi-Molinas argued the cause for respondents.
With her on the brief were Andrew Beck, Jennesa Calvo-
Friedman, Jennifer Dalven, David D. Cole, Kendall Turner,
Jeffrey L. Fisher, and Heather L. Gatnarek.*
*Briefs of amici curiae urging reversal were fled for the State of Ari-
zona et al. by Mark Brnovich, Attorney General of Arizona, Brunn W.
Roysden III, Solicitor General, Drew C. Ensign and Michael S. Catlett,
Deputy Solicitors General, Kate B. Sawyer, Assistant Solicitor General,
and Joseph A. Kanefeld, by Dawn Cash, Acting Attorney General of Okla-
homa, and by the Attorneys General for their respective States as follows:
Steve Marshall of Alabama, Treg Taylor of Alaska, Leslie Rutledge of
Arkansas, Ashley Moody of Florida, Christopher M. Carr of Georgia,
Lawrence G. Wasden of Idaho, Theodore E. Rokita of Indiana, Derek
Schmidt of Kansas, Jeff Landry of Louisiana, Lynn Fitch of Mississippi,
Eric S. Schmitt of Missouri, Austin Knudsen of Montana, Douglas J. Pe-
terson of Nebraska, Wayne Steneh jem of North Dakota, Dave Yost of Ohio,
Alan Wilson of South Carolina, Jason R. Ravnsborg of South Dakota,
Herbert H. Slatery III of Tennessee, Ken Paxton of Texas, Sean D. Reyes
of Utah, and Patrick Morrisey of West Virginia; for the Eagle Forum
Education & Legal Defense Fund by Lawrence J. Joseph; and for Presi-
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Opinion of the Court
Justice Alito delivered the opinion of the Court.
Th
is case concerns a state attorney general's attempt to
intervene in a federal appellate proceeding for the purpose
of defending the constitutionality of a state law. The issue
arose after a panel of the United States Court of Appeals
for the Sixth Circuit affrmed a decision holding a Kentucky
statute unconstitutional. The Kentucky offcial who had
been defending the law decided not to seek any further re-
view, but the Kentucky attorney general then moved to in-
tervene for the purpose of taking up the defense. The panel
denied that motion, but we granted review.
I
In April 2018, the Kentucky Legislature adopted House
Bill 454 (HB 454), which regulates the abortion procedure
known as dilation and evacuation. See Ky. Rev. Stat. Ann.
§§ 311.787(1)–(2) (West 2021). EMW Women's Surgical Cen-
ter, a clinic that performs abortions, and two of its doctors
fled this action in Federal District Court and sought to en-
join the enforcement of the new law. Their complaint
named four defendants, and two of these, the attorney gen-
eral and the cabinet secretary for Health and Family Serv-
ices, played pivotal roles in the events that followed. The
attorney general is a “[c]onstitutional State offce[r]” who is
independently elected and serves until a successor is elected
and qualifed. Ky. Const. § 91. The secretary, on the other
hand, is appointed by the Governor and serves at his pleas-
ure. See Ky. Rev. Stat. Ann. §§ 11.065, 12.020, 63.080.
The plaintiffs agreed to the dismissal without prejudice of
the claims against the attorney general (at that time Andrew
Beshear) and one other defendant.
1
In agreeing to the dis-
dent Pro Tempore of the North Carolina Senate Philip E. Berger et al. by
David H. Thompson and Peter A. Patterson.
Adam S. Gershenson and Kathleen R. Hartnett fled a brief for Federal
Courts Scholars as amici curiae urging affrmance.
1
The executive director of the Kentucky Board of Medical Licensure.

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Opinion of the Court
missal of these claims, the attorney general reserved “all
r
ights, claims, and defenses that [might] be available to him”
and “specifcally reserve[d] all rights, claims, and defenses
relating to whether he is a proper party in this action and
in any appeals arising out of this action.” App. 28–30 (em-
phasis added). It was also stipulated “that any fnal judg-
ment in this action concerning the constitutionality of HB
454 [would] be binding on the Offce of the Attorney General,
subject to any modifcation, reversal or vacation of the judg-
ment on appeal.” Id., at 29–30 (emphasis added).
After the dismissal of these parties, the secretary re-
mained in the case and conducted the defense of the chal-
lenged law.
2
Following a bench trial, the District Court held
that HB 454 unconstitutionally burdens a woman's right to
an abortion, EMW Women's Surgical Center, P.S.C. v. Meier,
373 F. Supp. 3d 807 (WD Ky. 2019), and it issued a permanent
injunction against the law's enforcement. The secretary
then fled a notice of appeal. App. 19.
While the appeal was pending, Kentucky held its 2019 gen-
eral elections. Andrew Beshear won the race for Governor,
and petitioner Daniel Cameron was elected to replace him as
attorney general. On January 20, Governor Beshear ap-
pointed a new secretary for Health and Family Services, and
the new secretary, represented by lawyers from the attorney
general's offce, continued the defense of the challenged law.
On January 28, one day before the appeal was argued, Attor-
ney General Cameron also entered an appearance as counsel
for the secretary. Id., at 82–83.
On June 2, 2020, a divided panel of the Sixth Circuit af-
frmed the District Court's judgment. EMW Women's Sur-
gical Center, P.S.C. v. Friedlander, 960 F. 3d 785, 790–812.
In dissent, Judge Bush argued that the plaintiffs lacked
third-party standing and criticized the majority for refusing
to wait for our decision on that issue in June Medical Serv-
2
The fourth defendant was the Commonwealth's attorney for the 30th
Judicial Circuit. He did not join the secretary's appeal. EMW Women's
Surgical Center, P.S.C. v. Friedlander, 960 F. 3d 785, 792 (CA6 2020).
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ices L. L. C. v. Russo, 591 U. S. ––– (2020). Within a week
af
ter the panel's decision, the secretary informed the attor-
ney general's offce that he would not fle a petition for re-
hearing en banc or a petition for a writ of certiorari, App.
153, 161, but the secretary agreed not to oppose the attorney
general if he moved to intervene for the purpose of seeking
further review. Id., at 153–154. Two days later, the attor-
ney general moved to withdraw as counsel for the secretary
and to intervene as a party on behalf of the Commonwealth.
Id., at 152. The secretary did not oppose that motion, but
respondents did. Id., at 170–172. Five days later, and
within the 14-day deadline for an existing party to seek re-
hearing, the attorney general tendered a petition for rehear-
ing en banc. Id., at 210–227; Fed. Rules App. Proc. 35(c)
and 40(a)(1).
By the same divided vote as before, the panel denied the
attorney general's motion to intervene, citing Circuit prece-
dent under which intervention on appeal is judged by essen-
tially the same standard as intervention in district court.
See Blount-Hill v. Zelman, 636 F. 3d 278, 283 (CA6 2011).
Applying that standard, the panel majority held, frst, that
the attorney general's motion was untimely because it was
not fled until years of litigation had passed and the panel
had already decided the appeal; second, that no “ `substantial
legal interest' ” was at stake because the attorney general
was pursuing “ `extraordinary' ” forms of review (rehearing
en banc and certiorari) to which litigants are not generally
entitled; and third, that allowing intervention would preju-
dice respondents because the attorney general's rehearing
petition included an argument (that respondents lacked
third-party standing) that the secretary's briefs had not
raised.
3
EMW Women's Surgical Center, P.S.C. v. Fried-
lander, 831 Fed. Appx. 748, 749–753 (CA6 2020).
3
In the District Court, an attorney representing the secretary had
raised the issue during argument on the secretary's motion for a directed
verdict, but the District Court refused to consider the issue on the ground
that it should have been raised much earlier. Tr. 105 (Nov. 15, 2018).
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We granted certiorari limited to the question whether the
Sixth
Circuit should have permitted the attorney general to
intervene. 592 U. S. ––– (2021).
II
In considering this question, we begin with respondents'
contention that the attorney general's motion to intervene
was jurisdictionally barred. Respondents never advanced
this argument below, and the Sixth Circuit did not consider
it. Nevertheless, we must assure ourselves that jurisdic-
tional requirements are met at all stages of the cases that
come before us for review, see Arbaugh v. Y & H Corp., 546
U. S. 500, 506 (2006).
A
Respondents' argument is narrow and somewhat compli-
cated. While implicitly conceding that a court of appeals
generally has jurisdiction to consider a non-party's motion to
intervene in a pending appeal, they claim that one narrow
sub-set of non-parties is jurisdictionally barred: those non-
parties that are bound by the district court judgment. Re-
spondents' argument goes like this. Non-parties who are
bound by a judgment can obtain appellate review by fling a
notice of appeal within the time prescribed by law. See 28
U. S. C. § 2107(a); Fed. Rule App. Proc. 4(a)(1). These time
limits are jurisdictional, see Bowles v. Russell, 551 U. S. 205,
209 (2007); Torres v. Oakland Scavenger Co., 487 U. S. 312,
315 (1988); Griggs v. Provident Consumer Discount Co., 459
U. S. 56, 61 (1982) (per curiam). And because non-parties
who are bound by a judgment can seek appellate review in
this way, they cannot circumvent the jurisdictional time lim-
its for fling a notice of appeal by fling a motion to intervene
after the deadline for fling a notice of appeal has passed.
Applying this theory, respondents contend that the Court
of Appeals lacked jurisdiction to entertain the attorney gen-
eral's motion. Because the attorney general agreed to be
bound by the judgment, respondents maintain, he could have
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Opinion of the Court
fled a notice of appeal, but since he failed to do so within
the
time allowed by law, his motion for intervention should
be treated like an untimely notice of appeal.
B
This argument fails for the simple reason that no provision
of law limits the jurisdiction of the courts of appeals in the
way respondents suggest. We do not read a statute or rule
to impose a jurisdictional requirement unless its language
clearly does so. See Henderson v. Shinseki, 562 U. S. 428,
439 (2011) (a provision is not jurisdictional when its language
“provides no clear indication that Congress wanted that pro-
vision to be treated as having jurisdictional attributes”).
Here, respondents cite no provision of law that deprives a
court of appeals of jurisdiction to entertain a motion for in-
tervention that is fled by a non-party who is bound by the
judgment that is appealed. No such language can be found
in either 28 U. S. C. § 2107, the Federal Rules of Appellate
Procedure 3 and 4, or any other provision of law. We there-
fore see no basis for holding that petitioner's motion was
jurisdictionally barred.
C
What respondents ask us to recognize is essentially a man-
datory claims-processing rule. Such rules are not jurisdic-
tional, and if a non-jurisdictional argument was not raised
below, we generally will not consider it as an alternative
ground for affrmance. See, e. g., Granfnanciera, S. A. v.
Nordberg, 492 U. S. 33, 38 (1989). In this case, however, we
do not rest our decision on respondents' failure to raise this
argument in the Court of Appeals. Even if that argument
had been preserved, we would not fnd it persuasive.
Assuming for the sake of argument that parties bound by
a judgment are generally permitted to appeal that judgment,
we do not think it follows that a party may do so regardless
of the ground on which the party is bound. Here, respond-
ents rely on the proposition that “[t]he Attorney General,
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like any other `person who agrees to be bound by the deter-
mi
nation of issues in an action between others is bound in
accordance with the terms of his agreement.' ” Brief for
Respondents 15 (quoting Taylor v. Sturgell, 553 U. S. 880,
893 (2008); emphasis added and alteration omitted). And
when a non-party is bound by a judgment for this reason, it
is hard to see why the non-party should be precluded from
seeking intervention on appeal if the agreement preserves
that opportunity.
That is the situation here. In agreeing to be bound, the
attorney general specifcally “reserve[d] all rights, claims,
and defenses . . . in any appeals arising out of this action,”
App. 28–29, and this language easily covers the right to seek
rehearing en banc and the right to fle a petition for a writ
of certiorari. In addition, the stipulation of dismissal made
clear that the judgment to which the attorney general
agreed to be bound was the judgment that emerged after all
appellate review concluded. See id., at 30 ( judgment bind-
ing on attorney general's offce “subject to any modifcation,
reversal or vacation of the judgment on appeal”).
For these reasons, we refuse to adopt a categorical claims-
processing rule that bars consideration of the attorney gen-
eral's motion. In doing so, we do not attempt to set out a
general rule governing the right of non-parties to appeal or
to move for appellate intervention.
III
Having concluded that neither a jurisdictional requirement
nor a mandatory claims-processing rule barred consideration
of the attorney general's motion, we turn to the question
whether the Court of Appeals properly denied that motion.
No statute or rule provides a general standard to apply in
deciding whether intervention on appeal should be allowed.
The Federal Rules of Appellate Procedure make only one
passing reference to intervention, and that reference con-
cerns the review of agency action. See Rule 15(d); Amalga-
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mated Transit Union Int'l, AFL–CIO v. Donovan, 771 F. 2d
1551,
1553, n. 3 (CADC 1985). Without any rule that gov-
erns appellate intervention, we have looked elsewhere for
guidance. Thus we have considered the “policies underlying
intervention” in the district courts, Automobile Workers v.
Scofeld, 382 U. S. 205, 217, n. 10 (1965), including the legal
“interest” that a party seeks to “protect” through interven-
tion on appeal. Fed. Rule Civ. Proc. 24(a)(2).
A
In defending the Kentucky law, the attorney general
asserts a substantial legal interest that sounds in deeper,
constitutional considerations. As we have observed, our
Constitution “ `spli[t] the atom of sovereignty.' ” Alden v.
Maine, 527 U. S. 706, 751 (1999) (quoting Saenz v. Roe, 526
U. S. 489, 504, n. 17 (1999)). “The Constitution limited but
did not abolish the sovereign powers of the States, which
retained `a residuary and inviolable sovereignty.' ” Murphy
v. National Collegiate Athletic Assn., 584 U. S. –––, –––
(2018) (quoting The Federalist No. 39, p. 245 (C. Rossiter ed.
1961)). Paramount among the States' retained sovereign
powers is the power to enact and enforce any laws that do
not confict with federal law. See U. S. Const., Art. VI, § 2.
Therefore, a State “clearly has a legitimate interest in the
continued enforceability of its own statutes,” Maine v. Tay-
lor, 477 U. S. 131, 137 (1986), and a federal court must “re-
spect . . . the place of the States in our federal system,”
Arizonans for Offcial English v. Arizona, 520 U. S. 43, 75
(1997). This means that a State's opportunity to defend its
laws in federal court should not be lightly cut off.
Respect for state sovereignty must also take into account
the authority of a State to structure its executive branch in a
way that empowers multiple offcials to defend its sovereign
interests in federal court. See Virginia House of Delegates
v. Bethune-Hill, 587 U. S. –––, ––– (2019). In this case, al-
though the secretary for Health and Family Services appar-
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ently enjoyed the authority under state law to defend the
constituti
onality of HB 454, the secretary shared that au-
thority with the attorney general. See Ky. Rev. Stat. Ann.
§ 15.020; see also Commonwealth ex rel. Hancock v. Paxton,
516 S. W. 2d 865, 868 (Ky. 1974) (“There is no question as to
the right of the Attorney General to appear and be heard in
a suit brought by someone else in which the constitutionality
of a statute is involved”). Indeed, it is the attorney general
who is deemed Kentucky's “chief law offcer” with the au-
thority to represent the Commonwealth “in all cases.” Ky.
Rev. Stat. Ann. §§ 15.020(1), (3).
The importance of ensuring that States have a fair oppor-
tunity to defend their laws in federal court has been recog-
nized by Congress. Under 28 U. S. C. § 2403(b), when a
state law “affecting the public interest is drawn in question”
in any “court of the United States” and neither the State nor
any state agency or offcer is a party, the court must notify
the state attorney general, and the State must be allowed to
intervene. See also Fed. Rule Civ. Proc. 24(a)(1). Even if
this provision is not directly applicable in this case because
the secretary for Health and Family Services was still a
party when the intervention motion was fled, it nevertheless
refects the weighty interest that a State has in protecting
its own laws. The way in which Kentucky divides executive
authority and the unusual course that this litigation took
should not obscure the important constitutional consider-
ation at stake.
4
Resoluti on of a motion for permissive interventi on is
committed to the discretion of the court before which inter-
4
Justice Kagan argues that the Court need not address the constitu-
tional basis for Kentucky's interest in the defense of its laws, but that
interest was a primary focus of the briefs and oral argument. And in-
deed, Justice Kagan agrees that “a State has a signifcant interest in
enforcing its own laws.” Post, at 291 (opinion concurring in judgment).
Such an interest depends on States' status as “separate sovereigns.”
Maine v. Taylor, 477 U. S. 131, 137 (1986).

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vention is sought, see Automobile Workers, 382 U. S., at 217,
n.
10; Fed. Rule Civ. Proc. 24(b)(1)(a). But a court fails to
exercise its discretion soundly when it “base[s] its ruling on
an erroneous view of the law,” Cooter & Gell v. Hartmarx
Corp., 496 U. S. 384, 405 (1990), and that is what happened
here. The Sixth Circuit panel failed to account for the
strength of the Kentucky attorney general's interest in tak-
ing up the defense of HB 454 when the secretary for Health
and Family Services elected to acquiesce.
5
B
The panel also erred in its evaluation of the other factors
that bear on all applications for appellate intervention. The
panel found that the attorney general's motion was not
timely because it came after years of litigation in the District
Court and after the panel had issued its decision, but its
assessment of timeliness was mistaken. Timeliness is an
important consideration in deciding whether intervention
should be allowed, see, e. g., Fed. Rules Civ. Proc. 24 (a) and
(b)(1), but “[t]imeliness is to be determined from all the cir-
cumstances,” and “the point to which [a] suit has progressed
is . . . not solely dispositive,” NAACP v. New York, 413 U. S.
345, 365–366 (1973).
Here, the most important circumstance relating to timeli-
ness is that the attorney general sought to intervene “as
5
The dissent argues that the Court of Appeals did not abuse its discre-
tion by denying the attorney general's intervention motion because his
predecessor in offce had argued that he had no interest in the litigation.
Post, at 292–293. The dissent argues that we should hold the attorney
general to that representation. But the Court of Appeals did not rely on
this argument, and for good reason. The attorney general was sued in
his role as a state offcial who could enforce HB 454, and the attorney
general had disclaimed any such enforcement authority. See Ex parte
Young, 209 U. S. 123, 159–160 (1908). The attorney general now seeks to
intervene not to defend a right to exercise enforcement powers under HB
454, but in his role as the Commonwealth's “chief law offcer,” Ky. Rev.
Stat. Ann. § 15.020(1), who has the authority to defend Kentucky's inter-
ests in federal court when no other offcial is willing to do so.
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Opinion of the Court
soon as it became clear” that the Commonwealth's interests
“wou
ld no longer be protected” by the parties in the case.
United Airlines, Inc. v. McDonald, 432 U. S. 385, 394 (1977).
Our decision in McDonald addressed a similar situation.
There, a member of a putative plaintiff class moved to inter-
vene for the purpose of appealing the District Court's denial
of class certifcation. Id., at 396. The District Court de-
nied that request because the class member had not “seen ft
to come in here and seek any relief from this Court in any
way” during “fve years” of litigation. Id., at 390. We held,
however, that the motion was timely because it was fled
soon after the movant learned that the class representatives
would not appeal.
The same logic applies here. The attorney general sought
to intervene two days after learning that the secretary
would not continue to defend HB 454. The motion was also
fled within a week after the Sixth Circuit issued its decision
and within the 14-day time limit for petitioning for rehearing
en banc. Although the litigation by that time had proceeded
for years, that factor is not dispositive. The attorney gener-
al's need to seek intervention did not arise until the secre-
tary ceased defending the state law, and the timeliness of his
motion should be assessed in relation to that point in time.
Respondents argue that the attorney general should have
realized as soon as Governor Beshear took offce that his
secretary for Health and Family Services might abandon the
defense of HB 454. Respondents state that Governor Bes-
hear ran “on a pro-choice platform and . . . had repeatedly
withdrawn from the defense of abortion restrictions when
serving as Attorney General.” Brief for Respondents 28.
But the new secretary whom he appointed after taking offce
as Governor had continued to defend the law on appeal, and
respondents do not explain why the attorney general should
have known that the secretary would change course after
the panel's decision was handed down.
In arguing to the contrary, respondents point to our deci-
sion in NAACP v. New York, 413 U. S. 345, but they misread

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281
Opinion of the Court
that decision. In that case, several parties unsuccessfully
sought
to intervene in a Voting Rights Act case after the
United States, which had brought the action, consented to
the entry of judgment in favor of the defendant. The Dis-
trict Court found that this request was untimely, and we
affrmed, noting that the United States' answer to the com-
plaint, which had been fled almost a month earlier, had re-
vealed that the Government “was without information with
which it could oppose the motion for summary judgment.”
Id., at 367. That response, we concluded, should have
alerted the would-be intervenors about the United States'
likely course of action. Ibid. We also observed, among
other th i ngs, that i nterventi on had “ the potentia l for
seriously disrupting ” the approaching elections. Id., at
368–369.
The situation here is starkly different. As discussed, the
attorney general's motion was timely, and intervention
would not have produced anything like the disruption that
the Court cited in NAACP v. New York. Thus, the panel
was mistaken in fnding that the attorney general's motion
was untimely.
C
The panel's fnding on prejudice was similarly fawed.
The panel argued that intervention would prejudice respond-
ents because the attorney general's rehearing petition
pressed an issue (third-party standing) that had not been
raised in the secretary's briefs. 831 Fed. Appx., at 751, 752.
But the lack of third-party standing was not the only argu-
ment advanced in the rehearing petition, App. 221–227, and
in any event, allowing the attorney general to intervene
would not have necessitated that the third-party standing
issue be entertained. If the secretary for Health and Fam-
ily Services had not retired from the feld, he could have
raised that same argument in a petition for rehearing or in
a petition for certiorari. In that event, the relevant court
(the Sixth Circuit in deciding whether to grant en banc re-
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Opinion of the Court
could have considered whether the third-party standing ar-
g
ument should be considered despite the secretary's failure
to raise the issue at an earlier point in the litigation. That
the issue was raised in the attorney general's rehearing pe-
titi on, as opposed to one fi led by the secret ary, was
immaterial.
Our decision in McDonald illustrates the panel's error.
In that case, we held that the defendant was not “unfairly
prejudiced simply because an appeal on behalf of putative
class members was brought by [an unnamed class member]
rather than by one of the original” parties, 432 U. S., at 394.
The situation here is similar.
Respondents advance one additional argument on the issue
of prejudice. They claim that intervention would unfairly
deprive them of a “reasonable expectation” stemming from
Governor Beshear's election. Brief for Respondents 31.
Respondents contend that Governor Beshear had a “his-
tory of refusing to defend abortion restrictions” and that
they therefore reasonably thought that the secretary, who
was appointed by the Governor, would not pursue “extraor-
dinary forms of relief if they prevailed in their appeal.”
Ibid.
The loss of this sort of claimed expectation does not
amount to unfair prejudice in the sense relevant here. Re-
spondents may have hoped that the new Governor would
appoint a secretary who would give up the defense of HB
454, but they had no legally cognizable expectation that the
secretary he chose or the newly elected attorney general
would do so before all available forms of review had been
exhausted.
***
For these reasons, the Court of Appeals erred in denying
the attorney general's motion to intervene. That court's
judgment is reversed, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
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Thomas, J., concurring
Justice Thomas, concurring.
I
join the opinion of the Court. I write to address another
reason why respondents and their amici err in maintaining
that the Court of Appeals lacked jurisdiction to consider At-
torney General Cameron's motion to intervene.
As the Court explains, respondents now argue that Attor-
ney General Cameron is jurisdictionally barred from inter-
vening in the appeal because his predecessor, then-Attorney
General Beshear, stipulated as a condition of his dismissal
that the Kentucky attorney general's offce would be bound
by the District Court's fnal judgment. According to re-
spondents, that stipulation required the attorney general to
timely notice an appeal consistent with Federal Rules of Ap-
pellate Procedure 3 and 4 if he wished to challenge the Dis-
trict Court's judgment on appeal. To allow intervention in
the appeal, respondents posit, would circumvent the jurisdic-
tional requirements of Federal Rules of Appellate Procedure
3 and 4.
The Court rightly rejects respondents' novel argument be-
cause the attorney general's stipulation preserved his offce's
right to participate in the appeal. See ante, at 275–276. But
in addition to the infrmity the Court identifes, respondents'
jurisdictional argument suffers from another, more basic
faw: Rules 3 and 4 permit only “parties” to appeal a district
court judgment, and the attorney general was not a “party”
to the judgment after he was dismissed from the litigation.
Federal Rules of Appellate Procedure 3(a)(1) and 4(a)
(1)(A) together require that any appeals from a district
court judgment be pursued by fling a notice of appeal within
30 days after entry of the judgment. See also 28 U. S. C.
§ 2107(a). We have described this requirement as “jurisdic-
tional.” See Torres v. Oakland Scavenger Co., 487 U. S. 312,
315 (1988); see also Gonzalez v. Thaler, 565 U. S. 134, 147
(2012). We have also held that Rule 3(c)—requiring, among
other things, that the notice of appeal “specify the party or
parties taking the appeal,” Fed. Rule App. Proc. 3(c)(1)(A)—
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is likewise jurisdictional. See Torres, 487 U. S., at 314–318;
Becke
r v. Montgomery, 532 U. S. 757, 765–766 (2001). Rule
3(c)(1)(A)'s requirement that the notice specify the “party”
taking the appeal refects the “well settled” “rule that only
parties to a lawsuit, or those that properly become parties,
may appeal an adverse judgment.” Marino v. Ortiz, 484
U. S. 301, 304 (1988) (per curiam). For example, individuals
who are “not parties to the underlying lawsuit” and fail to
intervene in the District Court cannot appeal a District
Court's judgment. Ibid. We are not at liberty to create
“exceptions to this general rule,” even when “the nonparty
has an interest that is affected by the trial court's judg-
ment.” Ibid. (internal quotation marks omitted).
Here, the attorney general was not a “party” to the Dis-
trict Court's fnal judgment. Then-Attorney General Bes-
hear was originally a “party” to this suit because he was
named as a defendant in the complaint. But the District
Court later dismissed Attorney General Beshear's offce from
the litigation in May 2018—about a year before fnal judg-
ment. A “party” dismissed from a lawsuit is no longer a
“party” to it after his dismissal. Just as “intervention is the
requisite method for a nonparty to become a party to a law-
suit,” United States ex rel. Eisenstein v. City of New York,
556 U. S. 928, 933 (2009), dismissal is the quintessential (if
not only) method for a party to become a nonparty, see, e. g.,
67A C. J. S., Parties § 86 (2013) (“Once a person is dismissed
from a lawsuit, he or she is generally no longer a party to it”).
One need hardly look beyond the case caption to see how
dismissal ended the attorney general's status as a “party”
to the litigation. To be sure, case captions are “ `not deter-
minative as to the identity of the parties to the action.' ”
Eisenstein, 556 U. S., at 935 (quoting 5A C. Wright & A.
Miller, Federal Practice and Procedure § 1321, p. 388 (3d ed.
2004)). But they can be instructive, given that “ `[t]he desig-
nation of persons as parties is usually made in the caption of
the summons or complaint.' ” Devlin v. Scardelletti, 536
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285
Thomas, J., concurring
U. S. 1, 15 (2002) (Scalia, J., dissenting) (quoting Restatement
(Second)
of Judgments § 34, Comment a, Reporter's Note,
p. 347 (1980)). Here, because respondents initially named
then-Attorney General Beshear as the lead defendant in
their complaint, the District Court's orders originally cap-
tioned the defendants as “ANDREW G. BESHEAR, et al.”
E. g., App. 28. After the District Court dismissed the attor-
ney general on May 21, 2018, the court ordered the clerk to
modify the case caption to “refect the remaining properly
named Defendants”: “Meier, et al.” Id., at 5, 7; see also App.
to Pet. for Cert. 104a (District Court fnal judgment listing
the defendants as “ADAM W. MEIER et al.”). The District
Court's modifcation of the caption confrms that when the
court issued its judgment, the attorney general was no
longer a “party.”
Because the attorney general was not a “party” to the Dis-
trict Court's fnal judgment, respondents' jurisdictional ar-
gument necessarily fails. As a nonparty, the attorney gen-
eral could not notice an appeal under Rules 3 and 4. And
because he could not notice an appeal, he could not possibly
have been obligated to do so, rather than pursue interven-
tion—“the requisite method for a nonparty to become a
party to a lawsuit.” Eisenstein, 556 U. S., at 933.
Respondents resist this conclusion and contend that the
attorney general remained a “party” because then-Attorney
General Beshear stipulated upon dismissal that “any fnal
judgment in this action . . . will be binding on the Offce of
the Attorney General, subject to any modifcation, reversal
or vacation of the judgment on appeal.” App. 29–30. Re-
spondents' argument has a veneer of plausibility only be-
cause of our decision in Devlin v. Scardelletti, 536 U. S. 1.
There, a majority of this Court held that a nonnamed mem-
ber of a certifed class action was a “party” who could appeal
the approval of a settlement to which he objected. Id., at
10. Rejecting the settled bright-line rule that only a named
party may appeal a fnal judgment, the Court adopted a
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vague, functionalist inquiry that determined “party” status
“
based on context.” Ibid.
Applying that test, Devlin held that “nonnamed class
members are parties to the proceedings in the sense of being
bound by the [ judgment],” and it was “th[at] feature of class
action litigation that require[d] that class members be al-
lowed to appeal the approval of a settlement.” Ibid. “To
hold otherwise,” the Court explained, “would deprive non-
named class members of the power to preserve their own
interests in a settlement that will ultimately bind them.”
Ibid.
I joined Justice Scalia's dissent in Devlin, which reiterated
that “ `parties' to a judgment are those named as such—
whether as the original plaintiff or defendant in the com-
plaint giving rise to the judgment, or as `one who though not
an original party becomes a party by intervention, substitu-
tion, or third-party practice.' ” 536 U. S., at 15 (quoting
Karcher v. May, 484 U. S. 72, 77 (1987); alterations omitted).
The Devlin Court's holding was, and is, “contrary” to that
“well-established law.” 536 U. S., at 15. To reason, as
Devlin did, that merely being bound by a judgment trans-
formed a nonnamed class member into a “party,” surely
“c[a]me as news to law students everywhere.” Id., at 18;
see also Marino, 484 U. S., at 304 (previously rejecting that
individuals become “parties” merely because they have “an
interest that is affected by the trial court's judgment”).
After all, “[t]here are any number of persons who are not
parties to a judgment yet are nonetheless bound by it.”
Devlin, 536 U. S., at 18. For example, as pertinent here,
when “ `[a] person agrees to be bound by the determination
of issues in an action between others,' ” we call application
of claim or issue preclusion to that person “nonparty preclu-
sion” precisely because agreeing to be bound by a judgment
does not alone make one a “party” to it. Taylor v. Sturgell,
553 U. S. 880, 893 (2008) (quoting Restatement (Second) of
Judgments § 40, at 390; emphasis added).
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Thomas, J., concurring
Devlin was demonstrably erroneous for the reasons set
for
th in Justice Scalia's dissent, and we should overrule it in
an appropriate case. That said, Devlin does not control
here. Several years after Devlin, in Eisenstein, we unani-
mously reiterated the principle that “[a] `party' to litigation
is `[o]ne by or against whom a lawsuit is brought.' ” 556
U. S., at 933 (quoting Black's Law Dictionary 1154 (8th ed.
2004)). Relying on Devlin's reasoning, the petitioner there
argued that the United States must be a “party” within the
meani ng of Ru le 4(a)(1)(B) because the Gover nment is
“bound by the judgment” in all actions under the False
Claims Act “regardless of its participation in the case.” 556
U. S., at 936. Consistent with our pre-Devlin cases, we reit-
erated that this fact was “not determinative” because “non-
parties may be bound by a judgment for a host of different
reasons,” 556 U. S., at 936, none of which suffces to trans-
form them into parties. We distinguished Devlin's contrary
reasoning by invoking the specifc “class-action nature of the
suit” there, 556 U. S., at 934, n. 3, essentially cabining that
precedent to class actions alone. And, true to Eisenstein,
we have not once relied on Devlin outside the class-action
context. See United States v. Sanchez-Gomez, 584 U. S.
–––, ––– (2018); Standard Fire Ins. Co. v. Knowles, 568 U. S.
588, 593 (2013); Smith v. Bayer Corp., 564 U. S 299, 313–315
(2011). Devlin is therefore an aberration from our other-
wise consistent view that only a named party may fle a no-
tice of appeal under Rules 3 and 4. And because this case
does not involve a class action, Devlin has no precedential
force.
***
The Offce of the Kentucky Attorney General was not a
named “party” to the District Court's fnal judgment. The
attorney general, accordingly, could not notice an appeal
from that judgment under Rules 3 and 4. And because the
attorney general could not appeal the District Court's judg-
ment, Attorney General Cameron moved to intervene and
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Kagan, J., concurring in judgment
pursue “the requisite method for a nonparty to become a
par
ty to a lawsuit.” Eisenstein, 556 U. S., at 933. Far from
evading the jurisdictional requirements of Rules 3 and 4,
Cameron's motion to intervene was his only legitimate option
to both comply with those Rules and participate in the ap-
peal as a party. For this reason, as well as those given in
the opinion of the Court, respondents' jurisdictional argu-
ment fails.
Justice Kagan, with whom Justice Breyer joins, con-
curring in the judgment.
I agree with the Court that the Sixth Circuit should have
allowed the attorney general to intervene in this suit after
another state offcial ceased defending the challenged Ken-
tucky law. And my reasons for reaching that conclusion
partly overlap with the Court's. But I would differently
frame and respond to the serious threshold issue that re-
spondent EMW raises. I also see no need to rely on “consti-
tutional considerations” to resolve the intervention question
before us. Ante, at 277 (opinion of the Court).
I
No jurisdictional rule, the Court and I agree, directly bars
the attorney general's intervention here. The rule EMW
relies on requires a losing party to fle a notice of appeal
within 30 days of the entry of judgment. See 28 U. S. C.
§ 2107(a); Fed. Rule App. Proc. 4(a)(1)(A). This Court has
made clear that the timely-appeal rule is jurisdictional.
See, e. g., Bowles v. Russell, 551 U. S. 205, 209 (2007). So if
a party (or a non-party having an equivalent right to appeal)
fles an appeal on the 31st day after judgment, the appellate
court lacks jurisdiction. But here the attorney general did
not fle such a late appeal. He instead moved to intervene in
an appeal timely brought by Kentucky's secretary for health
(after the secretary decided to forgo en banc or Supreme
Court review). And the provisions setting out the timely-
appeal rule do not address that situation. See ante, at 275.
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289
Kagan, J., concurring in judgment
The majority goes on to deny the existence of a “claims-
processi
ng ” rule preventing the attorney general's interven-
tion, see ante, at 275–276, but I think that terminology mis-
placed and distracting. We often consider whether timing
requirements are “ jurisdicti onal” r ules or else “claims-
processing ” rules. See, e. g., United States v. Kwai Fun
Wong, 575 U. S. 402, 409–410 (2015). (The question comes
up because only the latter may be waived or overcome by
equitable considerations; the former are absolute bars to
entertaining a matter. See ibid.) But here we know the an-
swer to that frequent question. As just stated, the timely-
appeal rule—the only rule anyone thinks relevant—is juris-
dictional. There is not a claims-processing rule in sight.
And EMW nowhere suggests otherwise; it never asserts the
existence of a claims-processing rule barring the attorney
general's motion.
The argument EMW makes—and it is a serious one—rests
on the idea that litigants should not be allowed to use inter-
vention procedures to end-run jurisdictional rules. Con-
sider a hypothetical to illustrate the problem. Suppose a
party (or a non-party having a right to appeal) misses the
30-day deadline to fle a notice of appeal from a judgment.
On the 31st day, he regrets his negligence and attempts to
intervene in another party's appeal in the same case.
Should the appellate court allow the intervention? Our
precedent, along with common sense, suggests not—even
though the timely-appeal rule, as noted above, does not ad-
dress issues of intervention. That is because permitting
intervention there would effectively “vitiate[ ]” the “man-
datory nature of the [appellate] time limits.” Torres v.
Oakland Scavenger Co., 487 U. S. 312, 315 (1988). Or other-
wise said, granting intervention would enable the party to
circumvent those limits, by awarding him the “equivalent”
of more “time for fling a notice of appeal.” Ibid.; see
Hutchinson v. Pfeil, 211 F. 3d 515, 519 (CA10 2000) (“[I]nter-
vention is not a means to escape the consequences of noncom-
pliance” with the jurisdictional timely-appeal rule). That is
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the essence of EMW's objection. EMW contends that the
attor
ney general, though a non-party, could have appealed
the District Court's judgment because it bound his offce.
But the attorney general chose at the time not to appeal.
He should not now be allowed, EMW says, to sidestep the
jurisdictional deadline he missed by means of intervening.
See Brief for Respondents 10, 15–16, 19–21.
But the anti-circumvention rationale for denying interven-
tion does not sensibly apply here because of the change in
circumstances between the time to appeal and the time of
the motion to intervene. Recall that the attorney general,
by agreeing early on to the dismissal of the claims against
him, effectively handed off defense of the challenged law to
the health secretary. See ante, at 271–272. After the Dis-
trict Court ruled, the secretary continued to perform that
function, appealing the court's decision to strike down the
law. Assume here, as EMW argues, that the attorney gen-
eral also could have appealed.* Even if so, the attorney
general had no reason to take that step: The secretary was
handling the appeal, just as he had handled the trial court
proceedings. It was only once the Sixth Circuit ruled and
the secretary ceased defending the law—choosing not to
seek en banc or Supreme Court review—that the (now new)
attorney general had an urgent reason to rejoin the suit: If
he did not, the law would be invalidated. The motion to
intervene, then, was not an attempt to escape the conse-
quences of failing to adhere to appellate deadlines, as in the
hypothetical offered above. The motion was instead a re-
sponse to a major shift in the litigation, creating a new de-
mand for the attorney general's participation. And that
*That assumption is perfectly reasonable. The agreement of dismissal
made the District Court's judgment binding on the attorney general's of-
fce (subject to any later revision or reversal). See App. 29–30. And a
non-party bound by a judgment often has the same appeal rights as a
party. See Devlin v. Scardelletti, 536 U. S. 1, 7–8 (2002) (discussing cases);
C. Wright, A. Miller, & E. Cooper, 15A Federal Practice and Procedure
§ 3902.1, pp. 186–189, n. 35 (2d ed. Supp. 2021) (same).

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Kagan, J., concurring in judgment
real-world fact answers EMW's argument. Granting the
moti
on would not countenance an end-run around the timely-
appeal rule by giving the attorney general a do-over. It
would simply recognize that only after the time for appeal
had come and gone had a need arisen for the attorney gen-
eral to reenter the suit.
II
With that threshold objection answered, the issue becomes
how the factors bearing on intervention motions play out. I
agree with much of what the Court says on that issue (and
also with its view that the attorney general's agreement did
not preclude his intervention). But I see no reason to cast
the analysis, even partially, in constitutional terms. See
ante, at 277–279. Our longstanding practice is to avoid un-
necessary discussion of constitutional questions. See, e. g.,
Ashwander v. TVA, 297 U. S. 288, 345–348 (1936) (Brandeis,
J., concurring). And contra the majority, no invocation of,
or lofty observations about, the Constitution are here
needed. The considerations governing intervention mo-
tions—applying equivalently to any person seeking to inter-
vene, including the attorney general—show why the Sixth
Circuit went wrong in closing off the suit. See generally
Fed. Rule Civ. Proc. 24.
Most fundamentally, the attorney general had a strong
reason for intervening. Once again, the secretary had de-
fended the challenged law as constitutional until the Sixth
Circuit ruled; but he then decided to abandon the argument.
If the attorney general could not assume the defense, and
thus continue contesting EMW's claim, Kentucky could no
longer enforce its statute. And it is of course true, as the
majority says, that a State has a signifcant interest in en-
forcing its own laws. See ante, at 277. As a practical mat-
ter, then, the attorney general belonged in the suit, absent
some good cause to exclude him.
And as the Court concludes, no such cause was present.
See ante, at 279–282. The intervention motion, though com-
ing late in the suit, was still timely. The attorney general
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intervened as soon as he had a reason to do so—more spe-
ci
fcally, two days after he learned that the secretary would no
longer defend the challenged law. See United Airlines, Inc.
v. McDonald, 432 U. S. 385, 394 (1977) (holding that a motion
to intervene was timely because it was made “as soon as it be-
came clear” that the movant's interests “would no longer be
protected” by existing parties). And the motion was fled
within the 14-day window for requesting an en banc rehear-
ing—so did nothing to delay the suit's normal progress. See
Fed. Rules App. Proc. 35(c) and 40(a)(1). Nor did the motion
otherwise prejudice EMW. The attorney general sought to
pursue only the usual next steps of appellate review—what the
secretary would have done had he not ceased defending the
law. Of course, EMW would have preferred the secretary's
action to bring the case to an end. But an unrealized gain of
that kind does not count as a legally cognizable harm. See
McDonald, 432 U. S., at 394 (holding that a litigant cannot
claim “unfair[ ] prejudice[ ]” when one person takes over an
appeal from another). Nothing, then, counterbalances the
reasons for enabling the attorney general's inclusion.
***
So I arrive, if via a somewhat different path, at the same
endpoint as the Court. In my view, the attorney general's
motion to intervene was not an end-run around the timely-
appeal rule. And with that issue out of the way, this is a
textbook case for intervention. The Sixth Circuit should
have allowed the attorney general to step into the litigation
to defend the challenged law.
Justice Sotomayor, dissenting.
In every case, there must be a “point of time when litiga-
tion shall be at an end.” Browder v. Director, Dept. of Cor-
rections of Ill., 434 U. S. 257, 264 (1978) (internal quotation
marks omitted). To effectuate that endpoint, our legal sys-
tem requires parties to abide by representations made in a
lawsuit regardless of later regrets. In this case, the attor-
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Sotomayor, J., dissenting
ney general of Kentucky stipulated to his own dismissal as a
par
ty in the District Court and agreed to have another off-
cial represent Kentucky's interests. Only years later, and
after the Court of Appeals affrmed the District Court's
judgment, did the attorney general ask the Court of Appeals
to allow him to return based on a position he had disavowed
when securing his dismissal earlier in the litigation. The
Court of Appeals refused his request to intervene.
Generally, the decision whether to permit intervention in
a case is left to the “sound discretion” of the court in which
intervention is sought, as that court is the best positioned to
assess potential ineffciencies and unfairness that might re-
sult. NAACP v. New York, 413 U. S. 345, 366 (1973). The
Court acknowledges that highly deferential standard, but
nonetheless bends over backward to accommodate the attor-
ney general's reentry into the case. I fear today's decision
will open the foodgates for government offcials to evade the
consequences of litigation decisions made by their predeces-
sors of different political parties, undermining fnality and
upsetting the settled expectations of courts, litigants, and
the public alike. I respectfully dissent.
I
In March 2018, the Kentucky Legislature enacted
House Bill 454 (H. B. 454), which prohibits “dilation and evac-
uation” abortions after 11 weeks of pregnancy except in
medical emergencies. Respondents, a clinic and two of its
physicians, challenged the law, contending that it violates the
Fourteenth Amendment by imposing an undue burden on the
right to previability abortion. Respondents named four de-
fendants in the complaint, including the attorney general of
Kentucky and the interim secretary of Kentucky's Cabinet
for Health and Family Services (secretary).
1
Each was
1
The other two defendants were the executive director of the Kentucky
Board of Medical Licensure and the Commonwealth's Attorney for the
30th Judicial Circuit of Kentucky.
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named in his offcial capacity. At the time, Andrew Beshear,
a
Democrat, served as Kentucky's attorney general. The
secretary served as part of the administration of Governor
Matt Bevin, a Republican.
Respondents sought a motion for a temporary restraining
order and preliminary injunction. In response, the attorney
general disclaimed responsibility for enforcing the law. The
attorney general explained that “H. B. 454 does not confer
upon the Attorney General the authority or duty to enforce
the provisions as enacted” and “does not provide the Attor-
ney General with any regulatory responsibility or other au-
thority to take any action.” Electronic Case Filing in No.
3:18–cv–00224 (WD Ky., May 8, 2018) (ECF), Doc. 42, p. 1.
He concluded that, as a result, “there is no act of the Attor-
ney General or his Offce for the Court to enjoin.” Ibid.
The attorney general asserted no interest in defending the
constitutionality of H. B. 454 on behalf of the State.
Shortly thereafter, the attorney general and the respond-
ents submitted to the District Court a joint stipulation and
proposed order of dismissal. The stipulation provided that
the attorney general “agrees that any fnal judgment in this
action concerning the constitutionality of HB 454 (2018) will
be binding on the Offce of the Attorney General, subject to
any modifcation, reversal or vacation of the judgment on
appeal.” ECF Doc. 46, at 2. It also specifed that he re-
served “all rights, claims, and defenses” that were available
to him, including those related to “whether he is a proper
party in this action and in any appeals arising out of this
action.” Id., at 1. The District Court entered the order
dismissing the attorney general from the case.
The attorney general did not participate in any further
proceedings before the District Court. The secretary con-
tinued to defend H. B. 454. After a 5-day bench trial, the
District Court issued a permanent injunction against the en-
forcement of H. B. 454, declaring it unconstitutional under
this Court's precedents. Subsequently, the secretary alone
fled a notice of appeal.
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Sotomayor, J., dissenting
After the secretary's appeal was fully briefed, but before
arg
ument, then-Attorney General Beshear was elected Gov-
ernor and Daniel Cameron, a Republican, was elected as
Kentucky's new attorney general. Four of the secretary's
lawyers moved to withdraw from the case, explaining that
they would no longer be employed in their current positions.
Some weeks later, the same four attorneys, now employed
by the Offce of the Attorney General, appeared as counsel
for the secretary. Attorney General Cameron also entered
an appearance as counsel for the secretary. He did not seek
to intervene.
The Court of Appeals rendered judgment against the sec-
retary, affrming the District Court's judgment. After this
decision, the secretary communicated to the attorney general
that he did not intend to defend H. B. 454 further by, for
example, fling a petition for rehearing en banc or seeking a
writ of certiorari. Attorney General Cameron and the law-
yers from his offce who had appeared as counsel for the sec-
retary moved to withdraw, and the attorney general moved
to intervene as a party in his own right. This was nearly
fve months after the attorney general reappeared as counsel
for the secretary and over two years after the District Court
entered the stipulated order of dismissal. The attorney
general also tendered a petition for rehearing en banc.
The Court of Appeals denied the motion and dismissed the
petition for rehearing en banc. It observed, among other
things, that the attorney general's motion to intervene came
“years into [the case's] progress,” after both the District
Court and the Court of Appeals had issued decisions. EMW
Women's Surgical Center, P.S.C. v. Friedlander, 831 Fed.
Appx. 748, 750 (CA6 2020). It explained that having been
“named . . . as a defendant” in the complaint and having
“stipulated [to his own] dismissal,” the attorney general was
unquestionably put on notice of the case long before the
Court of Appeals issued its decision. Id., at 751. In the
Court of Appeals' view, allowing the attorney general to in-
tervene at this late hour would give would-be intervenors

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“every incentive to sit out litigation until [a court of appeals]
issue[
s] a decision contrary to their preferences, whereupon
they can spring to action.” Id., at 750. The Court of Ap-
peals clarifed that it was “not reach[ing] the issue of
whether Attorney General Cameron has a substantial legal
interest in the subject matter of this case” nor “question[ing]
whether states' attorneys general may appropriately inter-
vene to defend their states' laws,” but merely addressing the
appropriateness of the attorney general's intervention under
the circumstances of “this particular case.” Id., at 752, n. 4.
This Court granted the attorney general's petition for cer-
tiorari, and now reverses.
II
I have no quarrel with the Court's holding that no jurisdic-
tional bar precluded the attorney general's intervention.
On the facts of this case, however, I disagree with the
Court's determination that the Court of Appeals' denial of
the attorney general's motion to intervene constituted an
abuse of discretion. The Court reaches that result only by
giving short shrift to a critical and unusual aspect of this
case: The attorney general's motion to intervene was based
on arguments he had eschewed below and was fled only
after judgments had been rendered by both the District
Court and the Court of Appeals. The attorney general's
change in position alone requires affrmance.
The Court correctly observes that “[r]esolution of a motion
for permissive intervention is committed to the discretion of
the court before which intervention is sought.” Ante, at
278–279 (citing Automobile Workers v. Scofeld, 382 U. S.
205, 217, n. 10 (1965); Fed. Rule Civ. Proc. 24(b)(1)(a)). The
Court may reverse, in other words, only if it determines that
the Court of Appeals abused its discretion by denying the
attorney general's motion for intervention. See generally
NAACP, 413 U. S., at 366.
The attorney general sought to intervene in the Court of
Appeals “to ensure that [the State's] interests with respect
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Sotomayor, J., dissenting
to H. B. 454” were “fully defended.” ECF in No. 19–5516
(
CA6, June 11, 2020), Doc. 56, pp. 5, 8; see id., at 13 (noting
that there is “no doubt” that Kentucky, “through Attorney
General Cameron,” has a suffcient legal interest in the mat-
ter). In the District Court, however, the attorney general
took a different view. There, he represented that he had no
interest in the case because “H. B. 454 does not confer upon
the Attorney General the authority or duty to enforce the
provisions as enacted,” and insisted that the law “does not
provide the Attorney General with any regulatory responsi-
bility or other authority to take any action related to the
Act.” ECF Doc. 42, at 1. Based on this representation, re-
spondents entered into a stipulation agreement with the at-
torney general, and the District Court entered its dismissal
order.
As a general matter, “ `where a party assumes a certain
position in a legal proceeding, and succeeds in maintaining
that position, he may not thereafter, simply because his in-
terests have changed, assume a contrary position, especially
if it be to the prejudice of the party who has acquiesced in
the position formerly taken by him.' ” New Hampshire v.
Maine, 532 U. S. 742, 749 (2001) (quoting Davis v. Wakelee,
156 U. S. 680, 689 (1895); alteration omitted). This principle
is not limited to private litigants. Courts and other parties
are also “entitled to rely on [a] State's plausible interpreta-
tion of the law it is charged with enforcing.” Sorrell v. IMS
Health Inc., 564 U. S. 552, 563 (2011). A state offcial's late-
breaking effort to change his theory of state law comes with
costs to judicial effciency and fnality, and it disrupts the
expectations not only of the adversarial litigant but of other
parties who may have litigated based on their understanding
of both the State's position and who would represent the
State's interests.
2
2
In the majority's view, the attorney general should not be held to his
earlier representation because, although he secured his own dismissal in
his offcial capacity and now seeks to intervene in his offcial capacity, his
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The Court's failure to acknowledge the attorney general's
sw
itch in position leads it to an erroneous result. The Court
primarily faults the Court of Appeals for “fail[ing] to account
for the strength of the Kentucky attorney general's interest
in taking up the defense of HB 454.” Ante, at 279. All
agree that States and their authorized offcials have substan-
tial sovereign interests in defending their laws. The Offce
of the Attorney General, however, previously represented
that it had no interest in these proceedings. Had the attor-
ney general been a private litigant, that decision would have
been binding: This Court regularly “has . . . refused to con-
sider a party's argument that contradicted a joint `stipulation
[entered] at the outset of th[e] litigation.' ” Christian Legal
Soc. Chapter of Univ. of Cal., Hastings College of Law v.
Martinez, 561 U. S. 661, 677 (2010) (quoting Board of Regents
of Univ. of Wis. System v. Southworth, 529 U. S. 217, 226
(2000); alterations in original). Respect for state sover-
eignty does not entitle a state offcial to evade these well-
established consequences. Given the attorney general's
change in position and the deferential standard of review, the
Court of Appeals did not abuse its discretion by denying his
motion for intervention.
Further, as the Court acknowledges, Kentucky law pro-
vides that the attorney general and other authorized state
offcials, including the secretary, “shar[e] . . . authority” to
defend the constitutionality of state laws, or to decline to do
so. Ante, at 278; see Ky. Rev. Stat. Ann. § 12.210(1) (West
2021). The Court makes much of the attorney general's role
theory of h is role i n the litigati on is di fferent. See an te, at 279,
n. 5. The Court cites no authority for this “two hats theory,” Tr. of Oral
Arg. 29, because it cannot. This Court's precedents recognize, of course,
the distinction between litigating in one's personal capacity and one's off-
cial capacity. See, e. g., Bender v. Williamsport Area School Dist., 475
U. S. 534, 543–544 (1986). But the Court has never held that a state off-
cial can wear separate “hats” within his offcial capacity for distinct pur-
poses, with different legal effect.
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Sotomayor, J., dissenting
in defending Kentucky law, but gives short shrift to the man-
ner
in which Kentucky has structured its law to allow other
state offcers to represent the State's interests in court.
When the attorney general stipulated to dismissal from the
case, he acquiesced to the secretary's right under state law
to represent Kentucky's interests in the manner that the sec-
retary saw ft.
Notably, the Court's decision to allow intervention on ap-
peal is without precedent. Before the Court of Appeals, the
attorney general was able to identify only two instances,
both from the Ninth Circuit, in which a federal court of ap-
peals granted a post-decision motion to intervene, a fact that
“points decisively against intervention” and hardly suggests
that denial of intervention would be an abuse of discretion.
831 Fed. Appx., at 750. Neither of those two cases involved
a situation in which the intervenor on behalf of the State
was a party to the case earlier in the proceedings, let alone
one in which the intervenor had previously disclaimed his
theory of intervention to obtain dismissal from the suit. See
Day v. Apoliona, 505 F. 3d 963, 965–966 (CA9 2007); Peruta
v. County of San Diego, 824 F. 3d 919, 941 (CA9 2016) (en
banc). Indeed, the Ninth Circuit has denied intervention on
facts similar to these. In Yniguez v. Arizona, 939 F. 2d 727
(1991), the court considered a state attorney general's motion
to intervene on appeal to defend the constitutionality of a
state law where the attorney general had previously “argued
for and won a dismissal of the suit against him in the district
court.” Id., at 729. There, as here, the attorney general
sought to intervene after the only remaining state defendant
in the case declined to pursue the case further. Id., at 730.
The court nonetheless held that “having argued in the dis-
trict court that he should not be a party, the Attorney Gen-
eral is estopped from now arguing that he should be.” Id.,
at 738. Other Courts of Appeals have similarly held that
stipulations entered into by a public offcial in his offcial ca-
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pacity are binding on the offcial's successors. Morales Feli-
c
iano v. Rullan, 303 F. 3d 1, 8 (CA1 2002); Vann v. United
States Dept. of Interior, 701 F. 3d 927, 929 (CADC 2012);
see generally 11A A. Miller, M. Kane, & C. Wright, Federal
Practice and Procedure § 2956 (3d ed. 2021).
Perhaps the Court means to excuse the attorney general
from his prior stipulation because of the intervening election.
That election undoubtedly explains, as a practical matter, the
attorney general's change in position. But the Court's rea-
soning would seem to apply equally if Attorney General
Cameron had held offce since the outset of this lawsuit,
made a calculated decision to stipulate to dismissal and let
another state offcer take the lead, and later sought to
reenter when that offcer decided not to pursue further
appeals.
Moreover, this is not the frst time a governmental offce
has changed hands in the middle of a protracted lawsuit, and
it certainly will not be the last. Elections have conse-
quences not just for the public but also for state offcers who
may fnd themselves bound by strategic litigation choices
made by their predecessors in offce. Shifts in the political
winds do not support a special carveout to longstanding prin-
ciples of estoppel. Rules that protect reliance and fnality
exist for good reason: Courts, litigants, and the public must
be able to trust representations made in court. If anything,
that reliance is only heightened when a government offcial
represented that he had no interest in defending state law.
***
The question in this case is not whether a state attorney
general may intervene, after a federal court of appeals al-
ready has rendered its judgment, for the purpose of defend-
ing a state law where no other state actor will do so. At
issue is a more specifc question: whether the Court of Ap-
peals acted within its discretion by denying this attorney
general leave to intervene when his offce previously stipu-

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301
Sotomayor, J., dissenting
lated to dismissal on grounds that contradicted his argument
for
intervention. Under these circumstances, I would not
disturb the “sound discretion” of the court below. NAACP,
413 U. S., at 366. I respectfully dissent.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 267, line 17, “David” is changed to “Daniel”