The Volokh Conspiracy

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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.


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.