The Volokh Conspiracy

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SCOTUS Denies Leave To File Amicus Brief By Two Law Professors Who Failed To Provide 10 Days Of Notice

The Court is enforcing Rule 37.2 strictly.


Until fairly recently, parties seeking to file an amicus brief before the Supreme Court had to seek the consent of the petitioner and respondent. Generally, this experience was pro forma. It was rare for consent to be denied. And if consent was not granted, amici could file a motion for leave, which was regularly granted. But this process was changed, effective January 1, 2023. Rule 37.2 removed the requirement to obtain consent of the parties. Rather, amici need to simply provide notice to the parties ten days before the day date:

An amicus curiae fling a brief under this subparagraph shall ensure that the counsel of record for all parties receive notice of its intention to fle an amicus curiae brief at least 10 days prior to the due date for the amicus curiae brief, unless the amicus curiae brief is fled earlier than 10 days before the due date.

Today, the Court denied two motions for leave to file an amicus brief where insufficient notice was filed. And both briefs were authored by law professors.

First, the Court denied cert in Cohen v. Apple. Professor Lawrence Lessig represented the City of Berkeley as amicus curiae. On March 15, the Court rejected Lessig's initial filing. That same day, Lessig filed a motion for leave to file the amicus brief. Lessig's brief was due on March 15, so notice would have been due on March 5. But Lessig did not provide such notice. The motion begins:

Amicus moves this Court to permit it to file this brief, despite failing to give notice to Respondent Apple Inc. ten days before the Amicus brief was due. Respondent has objected to Amicus filing its brief because of this failure of notice. But because Respondent itself received a thirty-day extension of its own deadline for filing, Respondent received not only notice of Amicus' intent to file a brief more than ten days before its own brief was due, but the actual brief 30 days before its brief was due. Respondent was not in any sense disadvantaged by Amicus' omission. Therefore, because any error was harmless to Respondent, Amicus asks this Court to accept its filing.

The Court, without any explanation, denied the motion for leave. The upshot here is that the due date of top-side amicus briefs is based on the original deadline, and not the extended deadline.

The Court likewise denied a motion for leave to file an amicus brief in Grayson v. No Labels. Here, Professor David Logan filed an amicus brief on April 24, 2023. Here, notice was due on April 14. But his request came on April 18. The Respondent offered this response:

Respondents' counsel would not ordinarily oppose the filing of an amicus brief that complies with Rule 37, but Professor Logan proposes filing an amicus brief that does not conform to the rule and, worse, he misstates the facts to this Court in seeking his relief. His motion should be denied.

Professor Logan brings his motion pursuant to "Rule 37.2(b)," which no longer exists, and he inaccurately states: "Counsel of record for the Respondents were notified on Tuesday, April 18, 2023, that Prof. Logan intended to submit the enclosed brief. Counsel for the Respondents has not responded to this notification. Petitioner has consented." Motion at 1. This is false.

On April 18, 2023, Joyce Hughes sent Respondents' counsel an email entitled "Please Be Advised Under Supreme Court Rule 37." The email stated in its entirety: "To Mr. Lowell and Mr. Man: Under Supreme Court Rule 37, please be advised that Prof. David Logan will be filing an amicus brief in support of the petition in No. 22- 906, Grayson v. No Labels. If you wish to consent, please reply here." The message clearly mentions filing an amicus brief under Rule 37, not filing a motion to file an amicus brief that does not comply with Rule 37.2.

Within fifteen minutes, Mr. Man responded to Ms. Hughes: "Under the recent amendments to Rule 37, you no longer need our consent. But you do need to provide notice of your intent to file an amicus brief within 10 days of its due date and, with any amicus brief being due by April 24, your notice to us today (the 18th) fails to comply with that rule." Thus, Professor Logan misrepresented to this Court that "Counsel for the Respondents has not responded to this notification." Motion at 1. Because he failed to provide Respondents with timely notice of his intent to file an amicus brief under Rule 37(2), Professor Logan's motion should be denied.

And Logan's motion was denied.

In both cases, the Court enforced Rule 37.2 strictly. Lawyers, take note!