Since the Supreme Court granted certiorari in King v. Burwell, I’ve been privately wondering whether Oklahoma, through Attorney General Scott Pruitt, would attempt to file a petition for certiorari before judgment, and join the case. Their case was on appeal to the 10th Circuit. Today, Oklahoma filed that motion. In short, the petition argues that adding Oklahoma would allow the Court to hear the perspective of the state, which has a special solicitude under Massachusetts v. EPA. Further, adding Oklahoma will firm up standing.
Oklahoma proposed an expedited briefing schedule. The Solicitor General will likely oppose it, though its BIO should be filed soon to give the Court enough time to consider the petition, and order a briefing schedule if necessary.
I should stress that it is very, very rare for petitions for certiorari before judgment to be granted. Virginia through former A.G. Ken Cuccinelli attempted this after their E.D.Va. victory, and it was soundly denied. This case may present a better vehicle–especially if the Justices have concerns about standing (this topic was aflutter on the ConLaw list-serve in the past week). If there were 4 to grant in King, I’m not sure why the same 4 wouldn’t grant this one.