On July 19, 2021, FIRE, joined by Speech First and the Independent Women’s Law Center, petitioned the Supreme Court for certiorari to review the First Circuit’s ruling affirming denial of our motion to intervene and resolve a circuit split on the proper standard for intervening in a lawsuit alongside the government. Under Federal Rule of Civil Procedure 24(a)(2), an individual or organization seeking to intervene as of right must establish that none of the existing parties “adequately represent” its interests. In cases where the individual or organization seeks to intervene on the side of a governmental entity, the First Circuit and several other courts of appeal presume that the government will adequately represent those interests. By contrast, four federal circuit courts of appeal do not put a thumb on the scale in favor of the government. FIRE’s petition asks the Supreme Court to review this case to resolve the circuit split, arguing that the presumption holding that a prospective party who sought to intervene on the same side as a governmental litigant had only a “minimal burden” to establish inadequacy of representation. If the federal government won’t defend its own laws, then citizens should have the opportunity to intervene and do so themselves.
After being featured as one of SCOTUSBlog’s “Petitions of the Week,” FIRE’s petition received amicus support from Alliance Defending Freedom, the Institute for Justice, the Liberty Justice Center, and Mountain States Legal Foundation. The Supreme Court denied our petition for certiorari on January 10, 2022.