In the 1980s, the National Association of Attorneys General (NAAG) began a project that has now become the NAAG Center for Supreme Court Advocacy, which assists state attorneys handling cases before the Court by reviewing draft briefs and organizing moot courts staffed by veteran Supreme Court litigators. And many attorney general offices have now created state solicitor general positions to supervise their appellate litigation, including at the U.S. Supreme Court. These attorneys are typically appellate specialists, and many have prior experience as law clerks or advocates at the Court. These efforts have greatly improved the reputation of state advocates before the Court. Indeed, Justice Scalia noted the advent of the modern state solicitor general’s office as a major improvement. Similarly, Justice Elena Kagan observed that most states today are represented at the Court by “really exceptional, skilled, experienced appellate counsel.”
In addition to improving their own individual appellate shops, states have also increased their legal and policy impact by acting collectively on the national stage. Since the 1970s and 1980s, as the size and responsibilities of their offices increased, state attorneys general have increasingly coordinated on a broad range of issues. In the 1990s, for example, all 50 states joined lawsuits against tobacco manufacturers, resulting in significant industry changes and settlements, including a more than $200 billion Master Settlement Agreement that remains the largest civil settlement in U.S. history. And in the 2000s, 12 states successfully sued the Environmental Protection Agency to force it to regulate greenhouse gases. Multistate efforts have only increased in recent years, as states have worked together to challenge all manner of federal regulation and hold pharmaceutical companies accountable for their role in the opioid crisis. As one commentator has observed, “coordinated state litigation . . . has become a particularly powerful method of national policymaking.” A central aspect of this coordination is filing multistate amicus briefs at the Supreme Court.
Multistate Amicus Briefs
States have long coordinated on Supreme Court amicus briefs. In 1963, for example, 22 states filed an amicus brief in Gideon v. Wainwright that helped convince the Court to overrule an earlier precedent and hold that the U.S. Constitution guaranteed indigent state criminal defendants the right to an attorney appointed at state expense. In recent years, as amicus briefing by all filers has increased dramatically, the states’ amicus activity—frequently coordinated through NAAG—has also significantly increased, both in terms of quantity and the scope of issues addressed. Between 1960 and 1973, only about 4% of merits cases at the Court attracted amicus participation by a state or group of states. Between 1974 and 1983, that number rose to 42%. The numbers leveled off somewhat during the next several decades. But they appear to be on the rise again. The states filed merits-stage amicus briefs in just over half—32 of 63—of the argued cases in the 2021 Term. The overwhelming majority of those briefs were filed on behalf of multistate coalitions, and many cases involved competing briefs from “red” and “blue” state coalitions. Although it is difficult to measure precisely the impact of these briefs, the Court does seem to listen to what the states have to say, regularly citing state amicus briefs in its decisions. This impact may be more limited in politically charged cases, however, if—as is increasingly the case—an amicus brief filed by one group of states takes a position directly contrary to a brief filed by another group of states.
State Support at the Cert-Stage
The Supreme Court’s rules permit amicus briefs to be filed not only on the merits for cases set for argument, but also at the cert-stage when the Court is deciding whether to review a case. As with merits-stage amicus briefs, the Court welcomes briefs that highlight “relevant matter not already brought to its attention by the parties,” but disfavors briefs that do not serve that purpose. Government actors including the U.S. Solicitor General and state attorneys general can file an amicus brief at either stage, as of right, without the Court’s permission or the consent of the parties.
Recent studies suggest that a cert petition accompanied by one or more amicus briefs is close to three times as likely to be granted as an unaccompanied petition. As one leading treatise observes, “it is difficult to overstate the value of amicus support at the certiorari stage,” and “an amicus brief that demonstrates that the case is important to others besides the immediate parties may be more helpful at this stage than after certiorari has been granted.”
But not all amici are created equal. Without a doubt, the most influential amicus is the U.S. Solicitor General. The Supreme Court often directly asks for the Solicitor General’s view on whether to grant cert, and a favorable recommendation greatly increases the odds that the Court will review the case. Other entities like the U.S. Chamber of Commerce and the ACLU have credible and sophisticated Supreme Court practices and frequently file cert-stage amicus briefs on a range of issues relevant to their organizational missions.
But apart from the U.S. Solicitor General, it is generally the states who can speak to the widest range of issues and can best highlight a case’s broad public significance. Indeed, when acting as petitioners on their own behalf, states are remarkably successful at obtaining Supreme Court review. According to one study of the 2001 to 2009 Terms, states were able to convince the Supreme Court to grant their cert petitions more than 20% of the time, as compared to a success rate of less than 5% for all attorney-filed petitions during the sample period.
And the states have been increasingly willing to wield their influence as amici curiae on behalf of other parties at the certiorari stage. In decades past, it was rare for a state or group of states to weigh in before the Court granted review. By the 2014 Term, however, states filed amicus briefs at the cert-stage in five of the cases that the Court ultimately reviewed on the merits. In the 2021 Term, the states filed at the cert-stage in ten such cases, or more than 15% of the Court’s merits docket.
Supporting a petition for certiorari with amicus briefing significantly increases the odds that the Supreme Court will grant review. The states are among the most experienced and effective amicus filers at both the cert- and merits-stage, and most state attorney general offices today have established processes in place for reviewing and responding to amicus requests. Attorneys seeking Supreme Court review are well-advised to consider whether their case presents an issue that may be of interest to the states.