DOJ Urges SCOTUS to Deny RFK Jr.’s Motion to Intervene in Missouri v. Biden

The U.S. Supreme Court should deny the Oct. 26 motion of Robert F. Kennedy Jr. and his two co-plaintiffs in Kennedy v. Biden (docket 3:23-cv-00381) to intervene in its review of the social media injunction against officials from the White House and four federal agencies (see 2310270001), said the government’s opposition response Thursday (docket 23-411). SCOTUS has distributed the Kennedy plaintiffs’ intervenor motion for the justices’ Nov. 17 conference (see 2311010038).

SCOTUS has applied “a particularly demanding standard for intervention,” reserving it for “rare” and “unusual” cases where extraordinary factors support intervention, said the opposition. The Kennedy plaintiffs don’t satisfy “any of the relevant considerations, much less identify anything rare, unusual, or extraordinary that would warrant intervention here,” said the government.

Their motion to intervene is “untimely,” said the government’s opposition. The Republican attorneys general of Missouri and Louisiana filed their complaint in Missouri v. Biden in May 2022, with the five individual social media users added as plaintiffs in August 2022, it said. “Yet at no point” in the following months did the Kennedy plaintiffs seek to intervene in Missouri v. Biden, it said. Nor did they seek intervention in the 5th U.S. Circuit Court of Appeals “during the three months that the appeal was pending there,” it said.

The movants “offer no good excuse” for their delay in seeking to intervene, said the government’s opposition. Their only argument on timeliness is that they moved for intervention immediately after SCOTUS granted the government’s cert petition, it said. But that doesn’t explain why they failed to seek intervention in the “many months” before cert was granted, it said.

The delay is “particularly unjustified” because all of the Kennedy plaintiffs’ arguments about their asserted interest in the SCOTUS proceedings “applied equally” to the 5th Circuit proceedings, said the government’s opposition. The appeal there “remained pending for months” after Kennedy v. Biden was consolidated with Missouri v. Biden in the district court, it said.

The movants haven’t identified “a significant protectable interest” that the plaintiff respondents in Missouri v. Biden don’t “adequately represent,” said the government’s opposition. That’s an additional rationale for denying their motion to intervene, it said. The Kennedy plaintiffs assert that because they are pursuing First Amendment claims that are substantially identical to those raised by the respondents in Missouri v. Biden, they have legal rights that will be adjudicated in the SCOTUS review, it said.

In making that assertion, which is the “fundamental premise” of the motion to intervene, the Kennedy plaintiffs “appear to presume” that the consolidation in the district court makes them parties to the SCOTUS review in Missouri v. Biden, said the government’s opposition. But that premise is “wrong,” it said. Consolidation isn’t like intervention or joinder, it said. Even after consolidation, the movants aren’t parties to Missouri v. Biden and won’t be bound “by any judgment in this case,” it said.

The movants also fail to show that intervention is “otherwise warranted” in the court's discretion, said the government’s opposition. Their own litigation remains "stranded" in the district court as the result of that court’s “sensible decision to defer consideration” of their preliminary injunction motion until after SCOTUS issues its decision in this case, it said. That’s a decision the district court made specifically to ensure that the consolidation of the two cases wouldn’t complicate the already-pending appellate proceedings in Missouri v. Biden, it said.

Intervention isn’t a tool for a litigant to expedite its own lawsuit “by piggybacking on a different one,” said the government’s opposition. The Kennedy plaintiffs “cite no precedent for using intervention in a pending case” in the Supreme Court “to circumvent the procedural rulings of a district court,” it said.

The plaintiff respondents have been silent on the Kennedy plaintiffs' motion to intervene in the week or more since it was filed. A footnote in the motion itself said that “all petitioners and respondents have stated that they do not consent to this motion to intervene.”