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October 17, 2022 Council of Appellate Lawyers

Changes to the Amicus Rules: Are Courts Becoming Friendlier to Friend-of-the-Court Briefs?

By Kip D. Nelson, Greensboro, NC

Eliminating Consent and Motion Requirements

Input from an amicus curiae (or “friend of the court”) was used at common law and apparently even was used in historic Roman law. Samuel Krislov, The Amicus Curiae Brief: From Friendship to Advocacy, 72 Yale L.J. 694, 694-97 (1963). The U.S. Supreme Court adopted this practice into the American judicial system in its early years, with notable historical figures such as Henry Clay appearing before the Court as an amicus curiae. See, e.g., Green v. Biddle, 21 U.S. 1 (1823). Still, amicus briefs were relatively rare in the nineteenth century. Joseph D. Kearne & Thomas W. Merrill, The Influence of Amicus Curiae Briefs on the Supreme Court, 148 U. Pa. L. Rev. 743, 744 (2000).

By the latter half of the twentieth century, however, the number of amicus curiae briefs to the U.S. Supreme Court had increased dramatically, despite the fact that the number of cases that the Court was deciding had remained relatively stable. Id. at 749. The number of such briefs per case also rose dramatically. Id. at 754. Today, amicus briefs are commonplace in litigation before the Supreme Court and increasingly in state and federal appellate courts as well.

Participating as an amicus curiae “has always been a matter of grace rather than right.” Krislov, supra, at 695. Nevertheless, the practice has not always been codified by rule. It was not until 1939 that the Supreme Court formally adopted a rule to address the issue. Sup. Ct. R. 27(9) (1939). Notably, that rule was very strict. Except for government amici, any amicus brief required the written consent “of all parties to the case.” Id.

Ten years later, the Supreme Court amended the rules to address situations in which one or more parties unreasonably withheld consent. By order issued in 1949, the procedure was modified so that amicus briefs could be filed either by consent of the parties or through motion practice. Although the location of the rules has moved over time, these provisions have largely remained the same since then.

That is, until this year. In March 2022, the Supreme Court announced proposed revisions to the Court’s rules—including the rules on amicus briefs. Under the proposed amendments, an amicus brief will require neither consent of the parties nor a motion. In other words, any amicus brief will be accepted in any case (so long as it is timely and formatted correctly). The Clerk’s commentary to the proposed amendments explains the purpose of this revision:

The requirement to either obtain consent to file an amicus curiae brief or file a motion for leave to file the brief is removed from Rules 37.2 and 37.3. While the consent requirement may have served a useful gatekeeping function in the past, it no longer does so, and compliance with the rule imposes unnecessary burdens upon litigants and the Court.

Aside from the administrative hassle of seeking consent from counsel, the removal of motion practice is also a boon. Although motions are occasionally denied for various reasons, see, e.g., N.C. State Bd. of Dental Examiners v. FTC, 573 U.S. 990 (2014); Deckers Outdoor Corp. v. United States, 572 U.S. 1129 (2014); NCAA v. Keller, 511 U.S. 1121 (2014), there has been a clear trend in favor of granting such motions. Indeed, research has demonstrated that members of the Supreme Court “rarely reject petitions to file amicus curiae briefs.” Karen O’Connor & Lee Epstein, Court Rules and Workload: A Case Study of Rules Governing Amicus Curiae Participation, 8 Just. Sys. J. 35, 35 (1983); see also Kearne & Merrill, supra, at 762 (“The Court’s current practice in argued cases is to grant nearly all motions for leave to file as amicus curiae when consent is denied by a party.”). And the Court does not hesitate to address arguments raised in amicus briefs. See Kearne & Merrill, supra, at 757 (“There is no question but that the total number of references to amici is substantial, and that the frequency of such references has been increasing over time.”); O’Connor & Epstein, supra, at 43 (finding that at least one amicus brief was cited in 18% of the Court’s opinions in which an amicus brief was filed).

As of the writing of this article, the proposed amendments have not yet been formally adopted. The Court invited public comment through April 28, 2022. It is assumed the comments are now currently under review. But, barring some unforeseen circumstance, it is likely that the rule changes will become effective in the near future.

It will be interesting to see if state courts follow the Supreme Court’s trend. Not surprisingly, procedures governing amicus participation in state appellate courts vary widely. Sarah F. Corbally et al., Filing of Amicus Curiae Briefs in State Courts of Last Resort: 1960-2000, 25 Just. Sys. J. 39, 46 (2004). However, one common thread is a requirement to obtain leave of court to file an amicus brief. See, e.g., Cal. R. Ct. 8.520(f)(1) (providing that an amicus can file a brief through “application for permission of the Chief Justice”); Fla. R. App. P. 9.370(a) (“An amicus curiae may file a brief only by leave of court.”); 22 NYCRR 500.23 (providing that an amicus seeking to file a brief “must obtain permission by motion”); N.C. R. App. P. 28(i) (providing that an amicus brief requires “the permission of the appellate court”); Va. R. 5:30(c) (providing that an amicus “must obtain leave of Court by motion”). Time will tell whether this requirement will remain in place.

Amicus Briefs and the Shadow Docket

The other significant change to the Supreme Court’s amicus procedure is a specific provision regarding amicus briefs in emergency applications. Proposed Rule 37.4 states that “the filing of these briefs is discouraged,” but such a brief can be appropriate “if it brings to the attention of the Court relevant matter not already presented by the parties that will be of considerable help to the Court.” Although no deadline is imposed, the brief should be filed “as promptly as possible considering the nature of the relief sought and any asserted need for emergency action.” Due to the time-sensitive nature of these cases, an amicus will not be required to notify the parties before filing a brief.

These emergency applications are heard in the context of the Supreme Court’s “shadow docket,” which has received considerable attention over the past few years. See, e.g., Whole Women’s Health v. Jackson, 141 S. Ct. 2494, 2500 (2021) (Kagan, J., dissenting); Stephen I. Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. 123 (2019). Although the Supreme Court’s noteworthy decisions are usually reported in thorough opinions (identified by their authors), the Court has been described as working in the “shadows” when it decides cases on an emergency basis such as through a motion for a stay.

The fact that the Supreme Court is explicitly adopting a rule to allow for amicus briefs in these proceedings suggests that the increasing submission of amicus briefs will not abate any time soon. In fact, allowing amicus participation may take away some semblance of the mystique surrounding the shadow docket. However, it is unclear how often this rule will be used in practice.

What The Changes Might Mean for You

Recognizing that a court will accept an amicus brief does not mean that the court will agree with an amicus brief. For example, in one year the Supreme Court’s opinions ranged from rejecting an amicus curiae’s argument, Heien v. North Carolina, 574 U.S. 54, 65-66 (2014), to declining to address an amicus curiae’s argument, Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 721 (2014), to citing to or quoting from an amicus brief with apparent favor, Utility Air Regulatory Grp. v. EPA, 573 U.S. 302, 319 (2014), to outright agreeing with an argument, Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 911-12 (2014). Not surprisingly, judges also disagree with their colleagues on the persuasiveness of certain arguments. For example, Justice Scalia criticized his fellow justices for relying on an amicus brief to define “domestic violence.” United States v. Castleman, 572 U.S. 157, 180-83 (2014) (Scalia, J., concurring in part).

Some have taken a bleak view of amicus briefs and argued that judges are not really influenced by their arguments. Donald R. Songer & Reginald Sheehan, Interest Group Success in the Courts: Amicus Participation in the Supreme Court, 46 Pol. Res. Q. 339 (1993); Philip B. Kurland & Dennis J. Hutchinson, With Friends Like These . . ., A.B.A. J. (Aug. 1984). In a well-known opinion, Judge Richard Posner stated that the “vast majority” of amicus curiae briefs do not assist judges and are actually an “abuse” of the system. Ryan v. Commodity Futures Trading Comm’n, 125 F.3d 1062, 1063 (7th Cir. 1997).

On the other hand, one explanation for the general level of acceptance of amicus briefs is that the briefs actually do help judges in their deliberative process. See O’Connor & Epstein, supra, at 41. Some crucial decisions from the Supreme Court were based on arguments from an amicus curiae rather than a party. Ernest Angell, The Amicus Curiae: American Development of English Institutions, 16 Int’l & Comp. L.Q. 1017, 1036 (1967); Bruce J. Ennis, Effective Amicus Briefs, 33 Cath. U. L. Rev. 603, 603 (1984). Thus, there is some evidence suggesting that amicus briefs do influence judicial decision-making. Moreover, as Professor Krislov wrote, an amicus curiae can “perform a valuable subsidiary role by introducing subtle variations of the basic argument, or emotive and even questionable arguments that might result in a successful verdict, but are too risky to be embraced by the principal litigant.” Krislov, supra, at 711; see also Paul M. Collins Jr., Friends of the Court: Examining the Influence of Amicus Curiae Participation in U.S. Supreme Court Litigation, 38 Law & Soc’y Rev. 807, 808 (2004) (explaining that amicus briefs can produce “additional social scientific, legal, or political information” to assist the judges). As then-Circuit Court Judge Alito stated, “an amicus who makes a strong but responsible presentation in support of a party can truly serve as the court’s friend.” Neonatology Assocs. v. Comm’r of Internal Revenue, 293 F.3d 128, 131 (3d Cir. 2002).

Even when a brief is not cited in a final opinion does not mean that it was not influential. As one scholar explained, there is a common misconception that amicus briefs “are not very important; that they are at best only icing on the cake. In reality, they are often the cake itself.” Ennis, supra, at 603.

The trick, then, is to write the most effective brief possible. That issue is beyond the scope of this article, and many resources are available to help practitioners draft a persuasive amicus brief. Some appear in this issue. Another great resource the author recommends is Kelly J. Lynch, Best Friends? Supreme Court Law Clerks on Effective Amicus Curiae Briefs, 20 J.L. & Pol. 33 (2004) (reporting on interviews with former Supreme Court clerks and discussing when amicus briefs are most helpful).

What is clear, though, is that amicus briefs are an important part of modern appellate practice and procedure. The proposed amendments to the Supreme Court’s rules confirm as much. Do you think that the rule changes may also influence other judges’ receptivity to amicus briefs? Asking for a friend.

Kip D. Nelson

Partner, Fox Rothschild LLP

Kip D. Nelson is a partner in the North Carolina offices of Fox Rothschild LLP. He is certified by the North Carolina State Bar as a specialist in appellate practice. He currently serves as the Rules Committee Chair and a state co-chair for the ABA Judicial Division’s Council of Appellate Lawyers, a member of the Section Council of the North Carolina Bar Association’s Appellate Practice Section, and a member of the North Carolina Bar Association’s Appellate Rules Committee.

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