Should U.S. Supreme Court Litigants Decline Consent for Filing of Amicus Briefs?

TL;DR summary: No, it's pointless -- as the data shows -- and it can make you look bad.

|The Volokh Conspiracy |

Under the U.S. Supreme Court rules, an amicus brief can only be filed with the consent of the parties or by leave of the Court. To get leave of the Court, one needs to file the amicus brief accompanied by a simple motion for leave to file the brief; but if one has consent, one can save the time needed to compose and proofread the motion (and save somewhere in the range of $50-100, because Supreme Court printers charge by the page, and the motion takes a few extra pages).

This leaves the parties with a decision to make: Should they consent to the filing of briefs that oppose their position, or decline to consent? If they decline to consent, then the brief will make clear that a party declined to consent—the presence of the motion will show that, and the motion itself will note which party declined. That might look bad for the declining party, because they may look like they're afraid of the brief's persuasiveness (or are at least petty and uncollegial). But if it works, and the Court denies the motion for leave, then it might be good for the declining party, precisely because they will have knocked out an argument for the other side.

The key question, then, is: How likely is the refusal of consent to work, so that the Court then denies leave?

I have an answer to that question (though I stress that it is focused on the practice of the U.S. Supreme Court; other courts may have different customs). I went on Bloomberg Law and searched through the Supreme Court dockets for (file OR submit) /5 amic! /s denied, which covered both merits-stage briefs and petition-stage briefs. After excluding orders that were actually denying motions for leave to file amicus briefs late (such denials are indeed quite common—be on time!), and a few other false positives, I found 5 prospective amici who had been denied since 2004. By comparison, I found over 200 grants of such motions in that time (though a few of those might be false positives).

Then I looked closely at those five. One, in Gonzales v. Carhart, was a diatribe against abortion (one heading: "Due process of law has compelled the U.S. Supreme Court to confess in court that it is guilty of extermination and murder") that isn't really a legal argument that was likely to persuade the Justices. People who want to express such views are certainly entitled to do so, but an amicus brief isn't really the place for such arguments.

Another prospective amicus was denied leave to file in three of the consolidated same-sex marriage cases that came before the Court in Obergefell v. Hodges. I think it's fair to say that the amicus brief, filed by a lawyer on his own behalf, was a pretty idiosyncratic creation, also unlikely to persuade the judges. A sample sentence from the concluding argument: "In short, it might be time for the Court to call a 'time out' as it were and issue a 9-0 'lay the law down on 'em', baby' ruling, something along practical, utilitarian lines a county court judge, with some backbone, might hypothetically issue, modified to reflect that this is an appellate setting, to wit …."

A third, in Tennessee v. Lane, was also written by a lawyer on his own behalf—by a lawyer who had been disbarred by the Court because he had been disbarred in New York for financial misconduct.

A fourth, in Butler v. FAA, was filed by petitioner's lawyer, not—as is the norm—a separate lawyer for the amicus, or even by an amicus filing pro se. The motion claimed that all the work was done by the amicus (again, seemingly one person expressing his own views), and the petitioner's lawyer was just acting as counsel of record, because he was a member of the Supreme Court bar. But my guess is that the Court did not approve of a party providing even that sort of help to the amicus.

Finally, a fifth brief, in Star Northwest, Inc. v. City of Kenmore, was apparently filed on behalf of a credible trade association, by a non-disbarred lawyer, who wasn't ranting. But here is the entirety of the argument in the brief:

The Washington Supreme Court has now declined on two occasions to review the state appellate court's rejection of a summarily-closed card room's Fifth Amendment takings claim [citing those two cases]. The interpretation of the United States Constitution on this important issue is overdue and resolved most appropriately by this Court.

This Court's decision on whether a card room is "vice-like" such that it lacks Fifth Amendment protection will answer—for all of Washington's remaining lawfully-operating card rooms—whether a licensed card room business owner must operate under a constant shadow of potential summary, uncompensated closure. RGA has both collected and undertaken studies regarding the community effects of card rooms across the State and has found ample evidence that card rooms provide substantial community benefits such as relatively high employee wages and a tradition of contributing a portion of profits to social services. RGA contends that an individual card room must be shown to be an actual nuisance before it is summarily closed; a label as "vice-like" is not enough.

Furthermore, a "vice-like" justification such as that employed in this case extends beyond the card room industry, enabling any local government to invoke its police powers to exempt itself from compensation obligations under the Fifth Amendment. This Court's review of the question presented will address the constitutional intersection of the Fifth Amendment takings clause with municipal police powers.

Finally, RGA joins Star Northwest, Inc.'s arguments on the merits of the question presented, including Star Northwest's analysis that whether a business use is "vice-like" is not a proper consideration in a Fifth Amendment takings claim and belongs, if anywhere, in a due process inquiry which does not dictate the outcome of a takings claim.

The Court likes concise arguments, but not this concise.

So, as best I can tell the Court has never—not once—in the last 14 years refused a normal, professionally prepared, rules-compliant amicus brief (one that was filed in time, by a nondisbarred lawyer independent of any party, and with normal, substantive legal argument). If you are asked for consent to the filing of an amicus brief in your Supreme Court case, there is basically no upside to refusing, and some modest downside. Just say yes.

Disclaimer: I'm one of the people who sometimes asks for leave, so my advice, if followed, will save me a modest amount of work and expense.

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  1. “The Court likes concise arguments, but not this concise.”

    This reminds me of that scene from “Life of Brian” where Brian says “There’s just no pleasing some people.” To which the ex-leper said, “That’s just what Jesus said Sir!”

    https://youtu.be/F1QKW3n9-rw

  2. Or, as been uttered from the bench in innumerable trial courtrooms in non-jury trials, when a party (particularly a pro se) proffers proposed evidence which is tangential, cumulative, and/or irremediable hearsay outside any exception: “goes to weight, not admissibility. I’ll allow it [and give it whatever weight it deserves].”

  3. “though I stress that it is focused on the practice of the U.S. Supreme Court; other courts may have different customs”

    How common (in comparison to cases before the US Supreme Court) are amicus briefs at the lower courts?

    Federal Circuit Courts?

    Do federal district courts ever get amicus briefs?

    State Supreme Courts?

    State intermediate appellate courts?

    State trial courts?

    1. Not as common, and it varies from jurisdiction to jurisdiction, but i myself have filed amicus briefs in each of these kinds of courts.

    2. I can’t speak for other states, but the California Supreme Court gets a lot of amicus briefs. This is particularly true in high profile cases, but it’s often true in other matters as well. For example, in cases involving the power of a public entity to impose taxes or the scope of the takings clause, cities and counties that are not parties to the litigation may want to chime in, as may various interest groups who care about the issue. If the question concerns insurance law, other insurers may want their views noted, as may various plaintiffs’ groups who file actions against insurers. It is less common for an individual to file a brief on his or her own behalf, but I would guess that the same would be true at the United States Supreme Court.

  4. $50-100 for a few extra pages which are, I assume, submitted digitally from word processing software?

    What is it per page? And why can’t you print it in the proper format yourself?

  5. There’s a special 6 1/8″ x 9 1/4″ booklet format that the Court requires for briefs (except those filed by people who get in forma pauperis status because they are too poor to pay the filing fee). See S. Ct. Rule 33. Because of the size and the binding, it’s almost always done through specialty printers.

    1. Thanks.

      It seems a bit overdone to me, though I can appreciate the need for a standard format. Still, if the motion really just takes an extra couple of pages in the booklet it seems hard to justify the $50, much less $100.

      No skin off my rear, of course, since I don’t file things, and indeed avoid courts as much as possible. It just seems sort of ridiculous, and I suppose that there might be some non-pauper organizations or individuals on tight budgets to whom the fee is an obstacle.

  6. Just have a bunch of high school kids file pro se briefs. They are mature and insightful, aren’t they?

    “Dear Supreme Court, please don’t let me get shot by those NRA dudes, tnx.”

  7. Gratuitous enemy theory should control: in short, don’t make needless enemies by opposing amicus submissions unless there is a really bad, truly awful, no good “friend” seeking to distract the court from the parties’ positions.

  8. Why not contact the other court and say “I agree to any amici supporting the other side if the other side will agree to amici supporting my side”? Or do the rules not allow such an offer of a broad deal?

    1. the court not the other court

  9. Have there ever been “false flag” amicus briefs? If so, how can the court tell?

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