(Slip Opinion) OCTOBER TERM, 2021 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 

being done in connection with this case, at the time the opinion is issued. 

The syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

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 filed 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 officials, 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 specified that 

the attorney general’s office reserved “all rights, claims, and defenses 

. . . in any appeals arising out of this action” and agreed to be bound by 

“any final judgment . . . subject to any modification, 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 

District 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 filed 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 Circuit panel affirmed the District Court’s judgment. 

The secretary then informed the attorney general’s office that the secretary would not file a petition for rehearing en banc or a petition for 

a writ of certiorari challenging the Sixth Circuit panel’s decision. Two 
2 CAMERON v. EMW WOMEN’S SURGICAL CENTER, P. S. C.

Syllabus

days later, the attorney 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 filed 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 attorney general to intervene.

Held: The Court of Appeals erred in denying the attorney general’s motion to intervene. Pp. 4–13.

 (a) This Court has jurisdiction to consider whether the attorney general’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 nonparty’s motion to intervene in a pending appeal. But respondents assert that a narrow subset of non-parties—those bound by the district 

court judgment—must file a timely notice of appeal to obtain appellate 

review and may not circumvent applicable jurisdictional time limits by 

filing a motion to intervene after the deadline for filing a notice of appeal has passed. Applying this theory, respondents contend that because the attorney general could have filed 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. 4–7.

 (1) No provision of law limits the jurisdiction of the courts of appeals to entertain a motion for intervention filed 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. Pp. 5–6.

 (2) This Court refuses to adopt what would essentially be a categorical claims-processing rule barring consideration of the attorney 

general’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 rehearing en banc and the right to file a petition for a writ of certiorari. And that agreement makes clear that the judgment to which 
Cite as: 595 U. S. ____ (2022) 3 

Syllabus

the attorney general agreed to be bound was the judgment that 

emerged after all appellate review concluded. Pp. 6–7.

 (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 

“policies underlying intervention” in the district courts, Automobile 

Workers v. Scofield, 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. 7–13.

 (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 Kentucky attorney general’s interest in taking up the defense of HB 454 

when the secretary elected to acquiesce. A State “clearly has a legitimate 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 ensuring 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 applicable in this case because the secretary remained a 

party—reflect 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 officials 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 constitutional consideration at stake. Pp. 7–9.

 (2) The panel also erred in its evaluation of the other factors that 

bear on all applications for appellate intervention. The panel’s assessment 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 

dispositive.” NAACP v. New York, 413 U. S. 345, 366. Here, the most 

important circumstance relating to timeliness is that the attorney general sought to intervene “as soon as it became clear” that the Commonwealth’s interests “would no longer be protected” by the parties in the 
4 CAMERON v. EMW WOMEN’S SURGICAL CENTER, P. S. C.

Syllabus

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. 10–12.

 (3) The panel’s finding that granting intervention would prejudice 

respondents was similarly flawed. While the attorney general’s rehearing petition pressed an issue (third-party standing) not raised in 

the secretary’s appellate briefs, allowing intervention would not have 

necessitated 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. 12–13.

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., filed a concurring opinion. KAGAN, J., filed an opinion concurring in 

the judgment, in which BREYER, J., joined. SOTOMAYOR, J., filed a dissenting opinion.
Cite as: 595 U. S. ____ (2022) 1 

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the 

preliminary print of the United States Reports. Readers are requested to 

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that 

corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES _________________ 

No. 20–601

_________________ 

DANIEL CAMERON, ATTORNEY GENERAL OF 

KENTUCKY, PETITIONER v. EMW WOMEN’S 

SURGICAL CENTER, P. S. C., ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SIXTH CIRCUIT

[March 3, 2022] 

 JUSTICE ALITO delivered the opinion of the Court.

This 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 affirmed a decision holding a Kentucky 

statute unconstitutional. The Kentucky official who had 

been defending the law decided not to seek any further review, but the Kentucky attorney general then moved to intervene 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 

Center, a clinic that performs abortions, and two of its doctors filed this action in Federal District Court and sought to 

enjoin the enforcement of the new law. Their complaint 
2 CAMERON v. EMW WOMEN’S SURGICAL CENTER, P. S. C.

Opinion of the Court

named four defendants, and two of these, the attorney general and the cabinet secretary for Health and Family Services, played pivotal roles in the events that followed. The 

attorney general is a “[c]onstitutional State office[r]” who is 

independently elected and serves until a successor is 

elected and qualified. Ky. Const. §91. The secretary, on the 

other hand, is appointed by the Governor and serves at his 

pleasure. 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 

dismissal of these claims, the attorney general reserved “all 

rights, claims, and defenses that [might] be available to 

him” and “specifically 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 

(emphasis added). It was also stipulated “that any final 

judgment in this action concerning the constitutionality of 

HB 454 [would] be binding on the Office of the Attorney 

General, subject to any modification, reversal or vacation of 

the judgment on appeal.” Id., at 29–30 (emphasis added).

After the dismissal of these parties, the secretary remained in the case and conducted the defense of the challenged 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 filed a notice of appeal. App. 19.

While the appeal was pending, Kentucky held its 2019 

general elections. Andrew Beshear won the race for Governor, and petitioner Daniel Cameron was elected to replace 

—————— 1The executive director of the Kentucky Board of Medical Licensure. 2The 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).
Cite as: 595 U. S. ____ (2022) 3 

Opinion of the Court

him as attorney general. On January 20, Governor Beshear 

appointed a new secretary for Health and Family Services, 

and the new secretary, represented by lawyers from the attorney general’s office, continued the defense of the challenged law. On January 28, one day before the appeal was 

argued, Attorney 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 affirmed the District Court’s judgment. EMW Women’s Surgical 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 Services L. L. C. v. Russo, 591 U. S. ___ (2020). Within a week 

after the panel’s decision, the secretary informed the attorney general’s office that he would not file a petition for rehearing 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 

attorney 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 

rehearing, the attorney general tendered a petition for rehearing 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 precedent under which intervention on appeal is judged by essentially 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, 

first, that the attorney general’s motion was untimely because it was not filed until years of litigation had passed 
4 CAMERON v. EMW WOMEN’S SURGICAL CENTER, P. S. C.

Opinion of the Court

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 prejudice 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. Friedlander, 831 Fed. Appx. 748, 749–753 (CA6 

2020).

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 jurisdictional 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 complicated. 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. 

—————— 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).
Cite as: 595 U. S. ____ (2022) 5 

Opinion of the Court

Respondents’ argument goes like this. Non-parties who are 

bound by a judgment can obtain appellate review by filing 

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 limits for filing a notice of appeal by filing a 

motion to intervene after the deadline for filing a notice of 

appeal has passed.

Applying this theory, respondents contend that the Court 

of Appeals lacked jurisdiction to entertain the attorney general’s motion. Because the attorney general agreed to be 

bound by the judgment, respondents maintain, he could 

have filed 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 provision 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 intervention that is filed 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 
6 CAMERON v. EMW WOMEN’S SURGICAL CENTER, P. S. C.

Opinion of the Court

law. We therefore see no basis for holding that petitioner’s 

motion was jurisdictionally barred.

C 

What respondents ask us to recognize is essentially a 

mandatory claims-processing rule. Such rules are not jurisdictional, and if a non-jurisdictional argument was not 

raised below, we generally will not consider it as an alternative ground for affirmance. See, e.g., Granfinanciera, 

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 find 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, 

respondents rely on the proposition that “[t]he Attorney 

General, like any other ‘person who agrees to be bound by 

the determination 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 specifically “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 file 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 
Cite as: 595 U. S. ____ (2022) 7 

Opinion of the Court

appellate review concluded. See id., at 30 (judgment binding on attorney general’s office “subject to any modification, 

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 general’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 concerns the review of agency action. See Rule 15(d); 

Amalgamated Transit Union Int’l, AFL–CIO v. Donovan, 

771 F. 2d 1551, 1553, n. 3 (CADC 1985). Without any rule 

that governs appellate intervention, we have looked elsewhere for guidance. Thus we have considered the “policies 

underlying intervention” in the district courts, Automobile 

Workers v. Scofield, 382 U. S. 205, 217, n. 10 (1965), including the legal “interest” that a party seeks to “protect” 

through intervention 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 
8 CAMERON v. EMW WOMEN’S SURGICAL CENTER, P. S. C.

Opinion of the Court

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) 

(slip op., at 14) (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 conflict 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. Taylor, 477 U. S. 131, 137 (1986), and a federal court 

must “respect . . . the place of the States in our federal system,” Arizonans for Official 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 officials to defend its sovereign interests in federal court. See Virginia House of Delegates v. Bethune-Hill, 587 U. S. ___, ___ (2019) (slip op., at 

5). In this case, although the secretary for Health and Family Services apparently enjoyed the authority under state 

law to defend the constitutionality of HB 454, the secretary 

shared that authority 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 officer” with the authority to represent the Commonwealth “in all cases.” Ky. Rev. Stat. Ann. §§15.020(1), 

(3).

The importance of ensuring that States have a fair opportunity to defend their laws in federal court has been recognized by Congress. Under 28 U. S. C. §2403(b), when a 

state law “affecting the public interest is drawn in question” 
Cite as: 595 U. S. ____ (2022) 9 

Opinion of the Court

in any “court of the United States” and neither the State 

nor any state agency or officer 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 filed, it nevertheless reflects 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 consideration at stake.4

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 (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 taking up the defense of HB 454 when the secretary for Health 

and Family Services elected to acquiesce.5

—————— 4 JUSTICE KAGAN argues that the Court need not address the constitutional 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 indeed, JUSTICE KAGAN agrees that “a State has a significant interest in 

enforcing its own laws.” Post, at 5 (opinion concurring in judgment). 

Such an interest depends on States’ status as “separate sovereigns.” 

Maine v. Taylor, 477 U. S. 131, 137 (1986). 5The dissent argues that the Court of Appeals did not abuse its discretion by denying the attorney general’s intervention motion because his 

predecessor in office had argued that he had no interest in the litigation. 

Post, at 5–6. 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 official who could enforce HB 454, and the attorney general 

had disclaimed any such enforcement authority. See Ex parte Young, 
10 CAMERON v. EMW WOMEN’S SURGICAL CENTER, P. S. C.

Opinion of the Court

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 

circumstances,” 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 timeliness is that the attorney general sought to intervene “as 

soon as it became clear” that the Commonwealth’s interests 

“would 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 intervene for the purpose of appealing the District 

Court’s denial of class certification. Id., at 396. The District 

Court denied that request because the class member had 

not “seen fit to come in here and seek any relief from this 

Court in any way” during “five years” of litigation. Id., at 

390. We held, however, that the motion was timely because 

it was filed 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 

—————— 

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 officer,” Ky. Rev. Stat. 

Ann. §15.020(1), who has the authority to defend Kentucky’s interests in 

federal court when no other official is willing to do so.
Cite as: 595 U. S. ____ (2022) 11

Opinion of the Court

filed 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 general’s need to seek intervention did not arise until the secretary 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 office that his 

secretary for Health and Family Services might abandon 

the defense of HB 454. Respondents state that Governor 

Beshear 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 

office 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 decision in NAACP v. New York, 413 U. S. 345, but they misread 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 District Court found that this request was untimely, and we 

affirmed, noting that the United States’ answer to the complaint, which had been filed almost a month earlier, had 

revealed 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 things, that intervention had “the potential for 

seriously disrupting” the approaching elections. Id., at 
12 CAMERON v. EMW WOMEN’S SURGICAL CENTER, P. S. C.

Opinion of the Court

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 finding that the attorney general’s motion 

was untimely.

C 

The panel’s finding on prejudice was similarly flawed. 

The panel argued that intervention would prejudice respondents 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 

argument 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 Family Services had not retired from the field, 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 review and this Court in deciding whether to grant 

certiorari) could have considered whether the third-party 

standing argument 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 petition, as opposed to one filed by the secretary, 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.
Cite as: 595 U. S. ____ (2022) 13

Opinion of the Court

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 

“history of refusing to defend abortion restrictions” and that 

they therefore reasonably thought that the secretary, who 

was appointed by the Governor, would not pursue “extraordinary 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. Respondents 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.
Cite as: 595 U. S. ____ (2022) 1 

THOMAS, J., concurring

SUPREME COURT OF THE UNITED STATES _________________ 

No. 20–601

_________________ 

DANIEL CAMERON, ATTORNEY GENERAL OF 

KENTUCKY, PETITIONER v. EMW WOMEN’S 

SURGICAL CENTER, P. S. C., ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SIXTH CIRCUIT

[March 3, 2022] 

 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 Attorney General Cameron’s motion to intervene.

As the Court explains, respondents now argue that Attorney General Cameron is jurisdictionally barred from intervening in the appeal because his predecessor, then-Attorney General Beshear, stipulated as a condition of his 

dismissal that the Kentucky attorney general’s office would 

be bound by the District Court’s final judgment. According 

to respondents, that stipulation required the attorney general to timely notice an appeal consistent with Federal 

Rules of Appellate Procedure 3 and 4 if he wished to challenge the District Court’s judgment on appeal. To allow intervention in the appeal, respondents posit, would circumvent the jurisdictional requirements of Federal Rules of 

Appellate Procedure 3 and 4.

The Court rightly rejects respondents’ novel argument 

because the attorney general’s stipulation preserved his office’s right to participate in the appeal. See ante, at 6–7. 

But in addition to the infirmity the Court identifies, respondents’ jurisdictional argument suffers from another, 
2 CAMERON v. EMW WOMEN’S SURGICAL CENTER, P. S. C.

THOMAS, J., concurring

more basic flaw: 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 filing 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 

“jurisdictional.” 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)—is likewise jurisdictional. See Torres, 487 U. S., 

at 314–318; Becker 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 reflects 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 judgment.” Ibid. (internal quotation marks omitted).

Here, the attorney general was not a “party” to the District Court’s final judgment. Then-Attorney General 

Beshear 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 office 

from the litigation in May 2018—about a year before final 

judgment. 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 
Cite as: 595 U. S. ____ (2022) 3 

THOMAS, J., concurring

lawsuit,” 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 determinative 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 designation of persons as parties is usually made in the caption 

of the summons or complaint.’” Devlin v. Scardelletti, 536 

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 

captioned the defendants as “ANDREW G. BESHEAR, 

et al.” E.g., App. 28. After the District Court dismissed the 

attorney general on May 21, 2018, the court ordered the 

clerk to modify the case caption to “reflect the remaining 

properly named Defendants”: “Meier, et al.” Id., at 5, 7; see 

also App. to Pet. for Cert. 104a (District Court final judgment listing the defendants as “ADAM W. MEIER et al.”). 

The District Court’s modification of the caption confirms 

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 District Court’s final judgment, respondents’ jurisdictional argument necessarily fails. As a nonparty, the attorney general could not notice an appeal under Rules 3 and 4. And 

because he could not notice an appeal, he could not possibly 
4 CAMERON v. EMW WOMEN’S SURGICAL CENTER, P. S. C.

THOMAS, J., concurring

have been obligated to do so, rather than pursue intervention—“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 final 

judgment in this action . . . will be binding on the Office of 

the Attorney General, subject to any modification, reversal 

or vacation of the judgment on appeal.” App. 29–30. Respondents’ argument has a veneer of plausibility only because of our decision in Devlin v. Scardelletti, 536 U. S. 1. 

There, a majority of this Court held that a nonnamed member of a certified 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 final judgment, the Court adopted a 

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 

allowed to appeal the approval of a settlement.” Ibid. “To 

hold otherwise,” the Court explained, “would deprive 

nonnamed 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 

complaint giving rise to the judgment, or as ‘one who 

though not an original party becomes a party by intervention, substitution, 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 150. To reason, 
Cite as: 595 U. S. ____ (2022) 5 

THOMAS, J., concurring

as Devlin did, that merely being bound by a judgment transformed 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 preclusion” 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).

Devlin was demonstrably erroneous for the reasons set 

forth 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 unanimously 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 

meaning of Rule 4(a)(1)(B) because the Government 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 reiterated that this fact was “not determinative” because

“nonparties may be bound by a judgment for a host of different reasons,” 556 U. S., at 936, none of which suffices to 

transform them into parties. We distinguished Devlin’s 

contrary reasoning by invoking the specific “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 
6 CAMERON v. EMW WOMEN’S SURGICAL CENTER, P. S. C.

THOMAS, J., concurring

Eisenstein, we have not once relied on Devlin outside the 

class-action context. See United States v. Sanchez-Gomez, 

584 U. S. ___, ___ (2018) (slip op., at 6); 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 otherwise consistent view that only a 

named party may file a notice of appeal under Rules 3 and 

4. And because this case does not involve a class action, 

Devlin has no precedential force. 

* * * 

The Office of the Kentucky Attorney General was not a 

named “party” to the District Court’s final 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 judgment, Attorney General Cameron moved to intervene and 

pursue “the requisite method for a nonparty to become a 

party 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 

appeal as a party. For this reason, as well as those given in 

the opinion of the Court, respondents’ jurisdictional argument fails.
Cite as: 595 U. S. ____ (2022) 1 

KAGAN, J., concurring

SUPREME COURT OF THE UNITED STATES _________________ 

No. 20–601

_________________ 

DANIEL CAMERON, ATTORNEY GENERAL OF 

KENTUCKY, PETITIONER v. EMW WOMEN’S 

SURGICAL CENTER, P. S. C., ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SIXTH CIRCUIT

[March 3, 2022] 

 JUSTICE KAGAN, with whom JUSTICE BREYER joins, concurring 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 official ceased defending the challenged Kentucky 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 respondent EMW raises. I also see no need to rely on “constitutional considerations” to resolve the intervention question before us. Ante, at 7 (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 file 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) files an appeal on the 31st day after judgment, the 

appellate court lacks jurisdiction. But here the attorney 

general did not file such a late appeal. He instead moved 

KAGAN, J., concurring in judgment
2 CAMERON v. EMW WOMEN’S SURGICAL CENTER, P. S. C.

KAGAN, J., concurring in judgment

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 5–6.

The majority goes on to deny the existence of a “claimsprocessing” rule preventing the attorney general’s intervention, see ante, at 6–7, but I think that terminology misplaced and distracting. We often consider whether timing 

requirements are “jurisdictional” rules 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 answer 

to that frequent question. As just stated, the timely-appeal 

rule—the only rule anyone thinks relevant—is jurisdictional. 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 

intervention procedures to end-run jurisdictional rules. 

Consider a hypothetical to illustrate the problem. Suppose 

a party (or a non-party having a right to appeal) misses the 

30-day deadline to file 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 address issues of intervention. That is because permitting intervention there would effectively “vitiate[]” the “mandatory nature of the [appellate] time limits.” Torres v. 
Cite as: 595 U. S. ____ (2022) 3 

KAGAN, J., concurring in judgment

Oakland Scavenger Co., 487 U. S. 312, 315 (1988). Or otherwise said, granting intervention would enable the party 

to circumvent those limits, by awarding him the “equivalent” of more “time for filing a notice of appeal.” Ibid.; see 

Hutchinson v. Pfeil, 211 F. 3d 515, 519 (CA10 2000) 

(“[I]ntervention is not a means to escape the consequences 

of noncompliance” with the jurisdictional timely-appeal 

rule). That is the essence of EMW’s objection. EMW contends that the attorney general, though a non-party, could 

have appealed the District Court’s judgment because it 

bound his office. 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 intervention 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 2. After the District 

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 general 

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 

—————— 

*That assumption is perfectly reasonable. The agreement of dismissal 

made the District Court’s judgment binding on the attorney general’s office (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).
4 CAMERON v. EMW WOMEN’S SURGICAL CENTER, P. S. C.

KAGAN, J., concurring in judgment

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 consequences 

of failing to adhere to appellate deadlines, as in the hypothetical offered above. The motion was instead a response 

to a major shift in the litigation, creating a new demand for 

the attorney general’s participation. And that real-world 

fact answers EMW’s argument. Granting the motion 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 general 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 7–9. Our longstanding practice is to avoid unnecessary 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 

motions—applying equivalently to any person seeking to 

intervene, 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 defended the challenged law as constitutional until the Sixth 
Cite as: 595 U. S. ____ (2022) 5 

KAGAN, J., concurring in judgment

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 significant interest in enforcing its own laws. See ante, at 8. As a practical matter, 

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 10–13. The intervention motion, though coming late in the suit, was still timely. The attorney general 

intervened as soon as he had a reason to do so—more specifically, 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 became clear” that the movant’s interests “would 

no longer be protected” by existing parties). And the motion 

was filed within the 14-day window for requesting an en 

banc rehearing—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 
6 CAMERON v. EMW WOMEN’S SURGICAL CENTER, P. S. C.

KAGAN, J., concurring in judgment

motion to intervene was not an end-run around the timelyappeal 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.
Cite as: 595 U. S. ____ (2022) 1 

SOTOMAYOR, J., dissenting

SUPREME COURT OF THE UNITED STATES _________________ 

No. 20–601

_________________ 

DANIEL CAMERON, ATTORNEY GENERAL OF 

KENTUCKY, PETITIONER v. EMW WOMEN’S 

SURGICAL CENTER, P. S. C., ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SIXTH CIRCUIT

[March 3, 2022] 

 JUSTICE SOTOMAYOR, dissenting.

In every case, there must be a “point of time when litigation shall be at an end.” Browder v. Director, Dept. of Corrections of Ill., 434 U. S. 257, 264 (1978) (internal quotation 

marks omitted). To effectuate that endpoint, our legal system requires parties to abide by representations made in a 

lawsuit regardless of later regrets. In this case, the attorney general of Kentucky stipulated to his own dismissal as 

a party in the District Court and agreed to have another 

official represent Kentucky’s interests. Only years later, 

and after the Court of Appeals affirmed 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 inefficiencies and unfairness that might 

result. 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 attorney general’s reentry into the case. I fear today’s decision will open the floodgates for government officials to 
2 CAMERON v. EMW WOMEN’S SURGICAL CENTER, P. S. C.

SOTOMAYOR, J., dissenting

evade the consequences of litigation decisions made by their 

predecessors of different political parties, undermining finality 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 

evacuation” 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 defendants 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 named in his official 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 Attorney General with any regulatory responsibility or other authority 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 Attorney General or his Office 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.

—————— 1The 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. 
Cite as: 595 U. S. ____ (2022) 3 

SOTOMAYOR, J., dissenting

Shortly thereafter, the attorney general and the respondents submitted to the District Court a joint stipulation and 

proposed order of dismissal. The stipulation provided that 

the attorney general “agrees that any final judgment in this 

action concerning the constitutionality of HB 454 (2018) 

will be binding on the Office of the Attorney General, subject to any modification, reversal or vacation of the judgment on appeal.” ECF Doc. 46, at 2. It also specified that 

he reserved “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 continued to defend H. B. 454. After a 5-day bench trial, the 

District Court issued a permanent injunction against the 

enforcement of H. B. 454, declaring it unconstitutional under this Court’s precedents. Subsequently, the secretary 

alone filed a notice of appeal. 

After the secretary’s appeal was fully briefed, but before 

argument, then-Attorney General Beshear was elected 

Governor 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 Office 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 secretary, affirming 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, 
4 CAMERON v. EMW WOMEN’S SURGICAL CENTER, P. S. C.

SOTOMAYOR, J., dissenting

for example, filing a petition for rehearing en banc or seeking a writ of certiorari. Attorney General Cameron and the 

lawyers from his office who had appeared as counsel for the 

secretary moved to withdraw, and the attorney general 

moved to intervene as a party in his own right. This was 

nearly five 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 intervene at this late hour would give would-be intervenors 

“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 Appeals clarified 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 intervene 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 certiorari, and now reverses.
Cite as: 595 U. S. ____ (2022) 5 

SOTOMAYOR, J., dissenting

II

I have no quarrel with the Court’s holding that no jurisdictional 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 filed 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 affirmance. 

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 9 (citing Automobile Workers v. Scofield, 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 

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 sufficient legal interest in the 

matter). 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 

responsibility or other authority to take any action related 
6 CAMERON v. EMW WOMEN’S SURGICAL CENTER, P. S. C.

SOTOMAYOR, J., dissenting

to the Act.” ECF Doc. 42, at 1. Based on this representation, respondents entered into a stipulation agreement with 

the attorney 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 interests 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 interpretation of the law it is charged with 

enforcing.” Sorrell v. IMS Health Inc., 564 U. S. 552, 563 

(2011). A state official’s late-breaking effort to change his 

theory of state law comes with costs to judicial efficiency 

and finality, 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

The Court’s failure to acknowledge the attorney general’s 

switch 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 

—————— 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 official capacity and now seeks to intervene in his official capacity, 

his theory of his role in the litigation is different. See ante, at 9–10, 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 official 

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 official 

can wear separate “hats” within his official capacity for distinct purposes, 

with different legal effect.
Cite as: 595 U. S. ____ (2022) 7 

SOTOMAYOR, J., dissenting

interest in taking up the defense of HB 454.” Ante, at 9. All 

agree that States and their authorized officials have substantial sovereign interests in defending their laws. The 

Office of the Attorney General, however, previously represented that it had no interest in these proceedings. Had the 

attorney general been a private litigant, that decision 

would have been binding: This Court regularly “has . . . refused to consider 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 sovereignty does not entitle a state official 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 provides that the attorney general and other authorized state 

officials, including the secretary, “shar[e] . . . authority” to 

defend the constitutionality of state laws, or to decline to do 

so. Ante, at 8; see Ky. Rev. Stat. Ann. §12.210(1) (West 

2021). The Court makes much of the attorney general’s role 

in defending Kentucky law, but gives short shrift to the 

manner in which Kentucky has structured its law to allow 

other state officers 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 secretary saw fit.

Notably, the Court’s decision to allow intervention on appeal 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 appeals granted a post-decision motion to intervene, a fact 
8 CAMERON v. EMW WOMEN’S SURGICAL CENTER, P. S. C.

SOTOMAYOR, J., dissenting

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 district court that he should 

not be a party, the Attorney General 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 official in his official capacity are binding on the 

official’s successors. Morales Feliciano 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 reasoning would seem to apply equally if Attorney 

General Cameron had held office since the outset of this 

lawsuit, made a calculated decision to stipulate to dismissal 
Cite as: 595 U. S. ____ (2022) 9 

SOTOMAYOR, J., dissenting

and let another state officer take the lead, and later sought 

to reenter when that officer decided not to pursue further 

appeals.

Moreover, this is not the first time a governmental office 

has changed hands in the middle of a protracted lawsuit, 

and it certainly will not be the last. Elections have consequences not just for the public but also for state officers who 

may find themselves bound by strategic litigation choices 

made by their predecessors in office. Shifts in the political 

winds do not support a special carveout to longstanding 

principles of estoppel. Rules that protect reliance and finality 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 

official 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 already has rendered its judgment, for the purpose of defending a state law where no other state actor will do so. At 

issue is a more specific question: whether the Court of Appeals acted within its discretion by denying this attorney 

general leave to intervene when his office previously stipulated 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.