GOP AGs Urge SCOTUS to Deny RFK Jr. Motion to Intervene in Missouri v. Biden

The Republican attorneys general of Missouri and Louisiana, plus their four individual social media user co-plaintiff-respondents in Missouri v. Biden, oppose Robert F. Kennedy Jr. and his two co-plaintiffs' Oct. 26 motion in Kennedy v. Biden to intervene in the U.S. Supreme Court’s review of the social media injunction against the White House and four federal agencies, said their responding brief Monday (docket 23-411).

The government filed its own opposition to RFK Jr.’s motion Nov. 2 (see 2311030001), and the Missouri respondents cited many of the same arguments in urging SCOTUS to deny Kennedy as an intervenor in the case. SCOTUS has distributed RFK Jr.'s motion to intervene for the justices’ Nov. 17 conference.

Intervention after SCOTUS has granted cert, which the court did Oct. 20, is a rare and extraordinary remedy, and the Kennedy plaintiffs “fail to meet the factors” that SCOTUS consults “in considering whether to grant this remedy,” said the Missouri respondents’ brief. The respondents agree the Kennedy plaintiffs’ standing is “unassailable,” but that also “confirms the standing” of the existing respondents, it said.

Those respondents include four individuals “who are avid followers, listeners, and audience members” of RFK Jr.’s social media speech, said the respondents’ brief. Any act of censorship on Kennedy and his co-plaintiff, Children’s Health Defense, “inflicts a reciprocal injury” on the respondents as their “audience members,” as the Kennedy plaintiffs “themselves emphasize,” it said. On this point, the respondents -- as the Kennedy plaintiffs’ audience members -- “share equally in any censorship injury” to the Kennedy plaintiffs, and “have standing on the same basis,” it said.

The respondents don’t dispute the Kennedy plaintiffs’ claim that they assert “unique interests” as social media viewers and listeners and as the social media audience, said their brief. Those are “valid interests,” but they are “vigorously asserted” by the existing respondents, it said.

The individual and state respondents “have emphasized these very interests” as social media listeners and audiences -- including of the Kennedy plaintiffs’ speech, among many others -- “consistently throughout this case,” said the respondents’ brief. The respondents “will continue to assert these interests in merits briefing as well,” it said.

On RFK Jr.’s assertions that he has a unique interest in avoiding federal censorship because he’s a presidential candidate, the respondents agree that his First Amendment interests are “uniquely ‘urgent’ in the context of his campaign” for the presidency, said their brief. But like the Kennedy plaintiffs’ other First Amendment interests, those interests “are shared equally” by RFK Jr.’s audiences, including the respondents, it said.

As the government’s opposition brief likewise argued, the respondents think the Kennedy plaintiffs’ motion to intervene is “untimely,” said their brief. “Despite being aware of this case for many months, they never sought leave to intervene as parties” either in the Western Louisiana district court where the social media injunction was imposed July 4, or in the 5th U.S. Circuit Court of Appeals, where the injunction was modified and affirmed Oct. 3, said the brief.

They sought consolidation in the district court only after the existing parties had spent more than nine months litigating the respondents’ motion for a preliminary injunction, said the respondents’ brief. That followed six months of injunction-related discovery, and after post-discovery injunction briefing “was well underway,” it said. The Kennedy plaintiffs “provide no adequate justification for attempting to intervene at a time that would delay proceedings well underway, such as changes in factual circumstances or legal developments,” it said.

The district court held in abeyance the Kennedy plaintiffs’ motion to consolidate until after ruling on the respondents’ motion for a preliminary injunction, said the respondents’ brief. It did so precisely “because their eleventh-hour request threatened to burden and disrupt the long-pending, well-advanced preliminary-injunction proceedings,” it said. “Because their request to participate in the district court was untimely,” it’s hard to see how their post-certiorari request for intervention in the Supreme Court “could be timely now,” it said.