Amicus Filings On The Shadow Docket

Repeat litigants file amicus briefs on short fuses all the time.

Currently pending before the Supreme Court is an emergency application from Yeshiva University. The case concerns whether the Jewish university can be required to recognize an LGBT student organization. The application for a stay was filed on August 29. That day, Circuit Justice Sotomayor called for a response by September 2. And the response was filed that on date. Between August 30 and September 2, ten amicus briefs were filed in support of Petitioner, including from the Jewish Coalition for Religious Liberty. (Disclosure: I am a director of that organization, and reviewed an earlier iteration of the brief in the lower courts.) However, zero amicus briefs were filed in support of Respondents.

The Respondents pointed out this fact in their response brief:

The sheer volume of amici who have filed briefs in support of Applicants demonstrates the national and even international interest in Applicants' First Amendment claims. Respondents will not be able to respond to those briefs in this application, nor will they have time to line up amici who might support their position, since unlike Applicants, Respondents did not have the opportunity to coordinate these filings in advance. Depending on what issues there are for review, many additional friends of the Court may wish to weigh in. The gravity of the questions Applicants want this Court to resolve would certainly suggest providing a more robust opportunity for amicus participation on both sides.

I am not persuaded by this claim for several reasons.

First, this case has been going on for some time. Recently, the New York courts declined Yeshiva University's request for a stay. Specifically, the New York Court of Appeals (the highest court in New York) denied relief on August 25. Yeshiva University's application came four days later on August 29. Justice Sotomayor gave the Respondents five days to file a reply, but they had (at least) four advance days of notice in advance that an application was imminent. Thus, there were at least nine total days of notice. And as a practical matter, there was even more time. It was not hard to predict that the counsel for the University, the Becket Fund For Religious Liberty, would seek this relief. Becket has done so many, many times before. The playbook isn't exactly novel. YUPride Alliance is represented by sophisticated counsel. They surely knew what would happen.

Second, given the fact that everyone knew where this case was headed, there was in fact time to line up amicus briefs for the shadow docket. Amicus briefs were filed in the lower court on both sides by the usual suspects. It would not have been difficult for counsel to give the repeat players a heads up that an emergency application would probably be filed. And unlike many of the COVID cases, here there is a substantial litigation record, as this case has been pending for more than a year. The "fuse" is quite lengthy here. It is straightforward for counsel to repurpose an amicus brief in the lower court for a Supreme Court brief. (JCRL did just that.)

Third, I am incredulous that big law firms, who routinely boast about their advocacy to promote LGBT causes, were unable to muster pro bono representation in a timely fashion. These firms are well equipped to slap together a Supreme Court brief in a few days. This task was routinely done during the Trump years. To take a more recent example, Steve Vladeck, a chronic critic of the shadow docket, filed an amicus brief in one of the many United States v. Texas cases five days after the application was filed. He was joined by Jenner & Block and the National Immigration Law Center. It can be done. By contrast, big law firms will refuse to file any amicus briefs that are on the opposite side of LGBT rights. Take a look at counsel who filed amicus briefs in support of Yeshiva University. None are from prestigious big law firms. And these smaller outlets have far fewer resources to turn around briefs on short timelines. But they managed.

Ultimately, the Respondents used their lack of friends as a reason for the Court to deny emergency relief. I'm not buying it. If amici chose not to file in this case, it was more likely a strategic decision. For example, it is rare to file briefs in opposition to certiorari. Doing so draws undue attention to the petition. Maybe the new strategy is to refuse to file amicus briefs in opposition to emergency stay applications as a way of saying "nothing to see here, just deny." I don't think this strategy will work.