Criticisms of state AGs for refusing to defend objectionable state laws are misplaced, Judge Pryor maintained, insofar as such criticisms are premised on the idea of an unyielding obligation to defend all relevant laws. Any criticisms of these officials, Judge Pryor suggested, should focus on the substance of their position — whether they correctly concluded that the law at issue is unconstitutional — and not on the decision not to defend it. After all, both the U.S. AG and state AGs take an oath to uphold the Constitution. This means AGs should defend silly-but-constitutional laws, but refuse to defend defensible-but-unconstitutional ones. Defending a law that is unconstitutional would conflict with that oath.
Judge Pryor’s lecture, like Judge Easterbrook’s from 1990, will be published in the Case Western Reserve Law Review, although not until next year. In the meantime, you can view a video of his remarks here.