Thursday, January 21, 2010
No doubt most of today's SCOTUS-related attention is on the 183-page decision in Citizens United v. FEC. But our readers may be even more interested in yesterday's decision in South Carolina v. North Carolina, which involves that favorite of proceduralists--intervention.
This case is an original action before the Supreme Court, and the issue was whether three nonstate entities (the Catawaba River Water Supply Project, Duke Energy, and the City of Charlotte) should be allowed to intervene. Answer: the first two may intervene; Charlotte may not. The Court was sharply divided, and it's one of the more unusual 5-4 splits you're likely to see. Alito wrote for the majority, joined by Stevens, Scalia, Kennedy, and Breyer. Roberts dissented (in part), joined by Thomas, Ginsburg and Sotomayor (they would have denied intervention to all three).
As footnote 8 of the Court's opinion indicates, Rule 24 does not formally govern original actions like this one--the Federal Rules of Civil Procedure are merely "to be taken as 'guides' to procedure in original actions."