By Marty Lederman
But now, in the course of the merits briefing in the Supreme Court, Attorney General DeWine has filed an amicus brief, ahead of the brief he will file on behalf of the state officials, in which he argues that the Ohio statute raises serious constitutional concerns. Unlike in Buckley, the Ohio AG’s amicus brief was not written in the solicitor general’s office. Instead, Attorney General DeWine “has arranged pro bono outside counsel,” Erik Jaffe and Bradley Smith (an option not legally available to the federal government, but I assume Ohio law authorizes it), and he represents that he has “screened” those pro bono counsel from contact with the “experienced lawyers in the Constitutional Offices section of the Attorney General’s Office” who are writing the state officials’ brief, due to be filed with the Court next Wednesday, March 26.
In his amicus brief, Attorney General DeWine emphasizes that he continues to “zealously represent” the state officials, but that he also has concluded that the Court “may benefit in its deliberations” from the further discussion of the law that he offers as an amicus. Expressly invoking both the Levi/Bork precedent from Buckley, and Metro Broadcasting v. FCC, in which Acting Solicitor General Roberts “fully advocated for a law’s unconstitutionality,” DeWine writes that “[a]n attorney general has a special duty, as an officer of the Court and representative of the public, to acknowledge when the government’s side might be wrong.” (For what it is worth, Article XV, Section 7 of the Ohio Constitution requires the state attorney general to take an oath or affirmation to support the Constitution of the United States, as required by Article VI, Section 3 of the U.S. Constitution.)
