Despite the heavy caseload of the Supreme Court, I have little doubt that the Court welcomes amicus curiae briefs of high quality. Amicus briefs provide data and perspective to the Justices that assist them in deciding complex cases. Justice Black observed that "[m]ost cases before this Court involve matters that affect far more people than the immediate record parties" (346 U.S. 947). Wise disposition of cases like these frequently requires information beyond the grasp of the litigants. The paradox has been that only certain types of associations appear very often as friends of the court. Business groups, for example, file fewer amicus briefs than the issues warrant.
The Supreme Court's frequent requests to the Solicitor General to file an amicus brief attest to their importance. In fact, even without a request, the Solicitor General files about 50 amicus briefs each Term. The opinions of the Court often refer to them.
The government is by no means alone in filing amicus briefs. For decades, public interest groups, usually of a liberal political outlook, have made their views known to the Court through amicus briefs. Today, organizations such as the American Civil Liberties Union, the NAACP Legal Defense & Education Fund, and the AFL-CIO advocate their positions in nearly every Supreme Court case that impinges on their goals. To a lesser extent, conservative public interest groups, such as the Mountain States Legal Foundation, also file amicus briefs in Supreme Court cases.
In the 1981 Term, 231 amicus curiae briefs were filed in the Supreme Court by parties other than governmental litigants. O'Connor & Epstein, Court Rules and Workload: A Case Study of Rules Governing Amicus Curiae Participation, 8 Just. Sys. J. 35, 40-41 (1983). The numbers were roughly the same over the prior five Terms. Amicus curiae briefs are now filed in two-thirds of the civil cases argued before the Supreme Court each year, and multiple filings are common. O'Connor & Epstein, Amicus Curiae Participation in U.S. Supreme Court Litigation: An Appraisal of Hackman's "Folklore," 16 Law & Soc'y Review 311, 317 (1982).
Amicus curiae briefs were cited or referred to in 18 percent of the opinions rendered by the Court or by individual Justices over the last decade. In the 1975 Term, 31 percent of the cases decided by the Court referred to amicus curiae briefs. To obtain additional information about the Supreme Court's use of amicus briefs, I have spoken with former law clerks from the chambers of most of the Justices. The picture that emerges is as follows.
The Justices handle amicus curiae briefs on the merits of cases in different ways. Some of them take all the briefs, including the amicus briefs, and study them before argument. Some Justices ask the clerks to pick out the most significant amicus briefs. Other Justices ask the clerks to circle passages in amicus briefs of the greatest importance to the analysis of the issues. Still others require the clerks to summarize important points made in amicus briefs either orally or in a bench memorandum. The clerks themselves reported that they examined each amicus curiae brief that was filed.
The clerks agreed that a good amicus brief gets attention. In fact, if the parties prepare poor briefs, the amicus brief can virtually replace the briefs filed by the parties. Even in cases where the parties file effective briefs, amicus briefs nonetheless can influence the Court because they provide additional information.
Briefs that Fail
On the other hand, the clerks agreed that many amicus curiae briefs are a waste of time and money. The court is flooded each Term with short amicus curiae briefs that say little more than "me too" — the amicus agrees with one side in the controversy. Other amicus briefs repeat the analysis of one of the parties with slightly varied phraseology. Still other amicus groups file documents so one-sided that they fail to meet the countervailing arguments, and thus they fail to assist the Court in comparing and evaluating competing claims. In addition, some amicus briefs insist on discussing issues that are far removed from the issues before the Court, and thus they contribute nothing to the analysis of the case. Finally, some amicus groups plague the Court with filings that are little more than political or economic editorials, and thus they fail to acknowledge and analyze the relevant statutory or constitutional principles, or even the decisions of the Supreme Court itself. Any of these deficiencies will take the amicus brief out of serious consideration.
The law clerks said that to be effective, an amicus brief must bring something new and interesting to the case. This might be better research, an explanation of the connection between the particular case and other pending cases, an improved discussion of industry practices or economic conditions, a more penetrating analysis of the regulatory landscape, or a convincing demonstration of the impact of the case on segments of society apart from the immediate parties. It also can be helpful to discuss the appropriate breadth of the Court's decision in light of such considerations. In considering what will be most useful, remember that the Justices labor in a state of relative isolation and have only a small amount of time for research in any particular case. An amicus brief must try to overcome that isolation by providing the information they need to declare legal rules of nationwide applicability.
The law clerks with whom I spoke said that some organizations develop positive reputations and, as a result, the Court relies on their briefs more than those of other organizations. This is particularly true of the Solicitor General's office. But it is also true of other well-established organizations, such as the American Bar Association. The Court knows it will get high quality and objective analysis from them. On the other hand, some organizations regularly file briefs of little value.
There is an important lesson here. Each brief filed in the Supreme Court that bears the name of an amicus curiae organization should be of the highest quality, because it will affect the reception that your next several briefs receive.
There is a perennial debate about whether an amicus curiae should retain an attorney who is well known and respected by the Justices and include that attorney's name on the brief. The law clerks told me that inclusion of such a name, while not affecting anybody's judgment about the issues, is at least a foot in the door. There is curiosity about what such a person has to say. And generating interest is an important facet of effective amicus participation.
Ordinarily, an amicus curiae only makes its views known by a written brief. While the Solicitor General often obtains the Court's permission to argue orally as amicus curiae, private amici almost never receive that luxury. That is true even if the parties are willing to cede some portion of their time. This places a premium on effective and lucid written argument.
Fortunately, those undertaking to draft an amicus brief in the Supreme Court now have the advantage of the good counsel of Robert L. Stern, who has written two books on this subject. See R. Stern, Appellate Practice in the United States, ch. 7 (1981). See also R. Stern & E. Gressman, Supreme Court Practice, ch. 13 (1978). I would like to offer only a few additional suggestions. Most of these suggestions reflect the practice of the Solicitor General, who in all probability is the most frequent and the most successful filer of amicus briefs in the Supreme Court.
1. Length. Brevity is an important virtue in an amicus curiae brief. Yet the goal of brevity should not override the more important goal of helpfulness. The Court expects to receive a developed legal analysis with appropriate research, not just a bare-bones statement of position. The Justices are accustomed to receiving amicus briefs that vary from 20 to 30 pages, with a limit of 30 pages. The Solicitor General's amicus briefs are typically in the range of 25 to 30 pages. This does not mean, of course, that the brief writer should use all available pages. On rare occasions, an amicus curiae asks for and obtains an extension of the 30-page limit. In my experience, such requests are rarely justified. In most instances, an extended presentation only impairs the effectiveness of an amicus curiae brief.
2. Motion for leave to file and statement of interest. If the parties have granted permission to file a brief amicus curiae, that must be recited at the outset of the brief and the letters of consent must be filed with the clerk. If the parties have withheld consent, that should also be recited. The amicus curiae must then precede its brief with a motion for leave to file.
The motion must concisely state the nature of the interest of the amicus organization and explain why its analysis of the issues will help the Court. Ordinarily, an amicus asserts that it has a special perspective on the issues in the case and summarizes the information it can supply. This includes information concerning the effect of the litigation beyond the immediate parties. But remember, whether or not you file a motion, the amicus brief must include a separate statement of interest. This comes before the statement of facts, summary of argument, argument, and conclusion. If the motion has fully described the interest of the amicus curiae, the statement of interest can be short.
3. Questions presented. Although the rules do not require an amicus curiae to set forth the questions presented, the amicus may do so. Rephrase the questions if they are awkwardly or obscurely stated by the parties. But be wary of attempting to smuggle in new and unrelated questions that the Court has not agreed to decide. See United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 60 n.2 (1981); Bell v. Wolfish, 441 U.S. 520, 531-532 n.13 (1979); Knetsch v. United States, 364 U.S. 361, 370 (1960). This is not to suggest that you must rely on the same rationale as the party you support. You may certainly improve on the analysis and research presented to the Court. But refrain from reformulating the underlying questions for decision.
4. Statement of facts. If the party you support has stated the relevant facts well, incorporate that statement by reference, or omit a statement of facts altogether. In many cases, however, the parties state the facts poorly. Sometimes they do not even set forth all the facts that are essential to resolve the legal issues. If that has happened, include a short statement of the facts. Support your factual propositions by reference to the lower court opinions in the case, which appear in the appendix to the petition for certiorari or jurisdictional statement, and which are cited as follows: "Pet. App. __" (for "Petition Appendix") or "J.S. App. __" (for "Jurisdictional Statement Appendix"). Other materials from the record reproduced in the joint appendix filed in the Supreme Court may be cited as "J.A. __" (for "Joint Appendix").
5. Style. As in other Supreme Court briefs, an amicus brief should be simple, unadorned by rhetorical devices, and undefaced by overstatement or exaggeration. Make the sentences and paragraphs relatively short. Draft the brief with active, not passive, verbs. The goal is ready comprehension. If the reader cannot comprehend the brief on the train on the way to work, it is too complicated. Boil it down. Resist any impulse to resort to purple prose. Likewise, resist the frequent use of adjectives, adverbs, or expressions like "obviously," "plainly," and their kin. Never succumb to the temptation to heap scorn on opposing counsel. Keep a moderate tone in an amicus brief.
6. Organization. Careful organization of an amicus curiae brief promotes comprehension. It also gives the impression of a logical, orderly analysis. Precede the main sections of the argument with argumentative headings numbered with Roman numerals. Use the argumentative headings to tell the Court what the section is all about in a short sentence. Introduce subordinate points with argumentative headings in smaller print. Set them off with capital letters rather than Roman numerals.
7. Citations. The cardinal rule is to rely on Supreme Court decisions. Collect lower court cases and analyze the trend. But do not make an argument hinge on a lower court opinion, no matter how eminent the author. If you find the reasoning of a lower court opinion persuasive, incorporate it and elaborate it in the argument. Remember that the authority of a lower court decision will not, by itself, impress the Justices.
8. Statutory analysis. Many cases before the Supreme Court require construction of federal statutes. The Supreme Court does not grant review to resolve issues of state law. It uniformly accepts the construction placed on state law by the highest state court. In a diversity of citizenship case, it almost always relies on the views of the lower federal courts, which have greater familiarity with local rules of decision. There is little or no point, therefore, in attempting to persuade the Supreme Court that the lower court has misconstrued state legislation or common law rules.
The Court has repeatedly held that the starting point for construing a federal statute must be the literal language of the statute itself. E.g., Ernst & Ernst v. Hochfelder, 425 U.S. 185, 197 (1976). Next, the amicus brief should present arguments based on the statutory scheme to the extent that structure illuminates the issues. Then it is appropriate to examine the legislative history. Do not omit this step, since the Court itself relies on legislative history in many decisions. Unfortunately, many briefs filed by parties do not analyze the legislative history. An amicus brief can serve a valuable function by filling that gap. Finally, the brief should analyze the issues in terms of statutory policy and general public policy.
9. Practical consequences. An amicus brief should not solely discuss statutes and cases. Common-sense reasoning, addressed to real consequences, has great importance to the Court. An amicus brief can show the effect of the decision on an industry and the public at large. In particular, an amicus brief can provide substantial assistance to the Court by demonstrating the effect of an affirmance or reversal on various segments of society other than the immediate parties. The amicus brief that puts technical legal reasoning into a pragmatic context will receive the most attention.
10. Non-record materials. Avoid the impression that you present policy arguments ex cathedra. Refer the Court to authoritative academic works, including economic studies. For example, in antitrust cases, the Solicitor General's office commonly refers to leading economic studies to supplement its legal analysis. No one would think of arguing an antitrust case today with reference to nothing but statutes and judicial opinions. The same is true of other cases that raise economic issues.
Occasionally, a valuable article will not be published at the time of briefing. In that instance, lodge ten copies of the article with the clerk, with a cover letter explaining that the unpublished article is referred to in the amicus curiae brief and is being lodged for the convenience of the Court. Serve copies on the parties.
In presenting such information, the amicus brief is, of course, transcending the record. That is acceptable if handled forthrightly. Robert Stern has said:
If the presentation by the amicus is to be given weight by the court, the non-record facts relied upon should have the ring of truth on their face. They should not relate to the facts of the particular case as between the parties, but should resemble the 'legislative facts' having 'relevance to legal reasoning and the law making process' . . . In general, an amicus brief would lose credibility with the court (with or without an opposing presentation) if it goes too far in setting forth non-record material as indisputably true. The good sense of the court should enable it to recognize when this occurs. A good lawyer should be aware of this danger of overstatement and avoid it.
R. Stern, Appellate Practice in the United States 340 (1981). Such matters frequently present close questions of judgment. For example, if an amicus organization wishes to tell the Court how many suits of a particular kind its members have been exposed to, it is obviously speaking outside the record. The Court can be referred to no authoritative writing to substantiate the proposition. Still, the information may have great relevance to the Court's analysis of a policy issue. Inform the Court that the statistics have been gathered by the amicus organization from internal sources for the Court's information. It may be appropriate to make a summary of the underlying records available to counsel and the Court for examination. Serve them on the parties and lodge them in the clerk's office.
The amicus brief may not, however, attempt to supplement the record in the case before the Court by adding evidence that the parties should have provided concerning their own situations. Nor may amici attempt to assume the role of class members once the case reaches the Supreme Court. As the Court explained recently in Sony Corp. v. Universal Studios, __ U.S. __, 52 U.S.L.W. 4090, 4094 n.16 (Jan. 17, 1984):
[We] reject respondent's attempt to cast this action as comparable to a class action because of the positions taken by amici with copyright interests and their attempt to treat the statements made by amici as evidence in this case. The stated desires of amici concerning the outcome of this or any litigation are no substitute for a class action, are not evidence in the case, and do not influence our decision; we examine an amicus curiae brief solely for whatever aid it provides in analyzing the legal questions before us.
Stated otherwise, materials outside the record are appropriately referred to in an amicus brief only in analyzing general legal and policy issues. They are not substitutes for record evidence.
11. Objectivity. The amicus brief, although forcefully supporting one side of the controversy, will not be effective unless it gives the impression of considering, comprehending, and carefully analyzing the interests and claims on both sides. Most of the cases that reach the Supreme Court are close cases, which frequently result in a vote of five-to-four or six-to-three, or even plurality opinions. An amicus brief that does not weigh competing interests will not help the Court in a close case.
Beyond this, convey the impression that the amicus curiae is indeed a friend of the Court concerned with the development of the law and not just a partisan. Emphasize the correct articulation of legal rules of general applicability, not just the correct resolution of the particular case before the Court. The amicus brief should project a moderate tone. The brief should offer information and expertise about legal and policy issues, not myopic concern over a particular result in the case before the Court.
12. Coordination. If possible, coordinate at an early point with the party the amicus wishes to support. This will permit the amicus to receive copies of essential court papers and the record. It will help avoid duplication in argument. Send a draft of the amicus brief to the party well before the filing date. The party the amicus supports may correct factual misconceptions and other embarrassing errors before the brief is filed.
13. A unified front. Several different amici from related industries may plan to file briefs in the Supreme Court in a single case. Consider a single brief in which all amici join. Not only can you pool research and analysis, you can share the cost. You also avoid burdening the Justices with repetitious briefs. Repetition only scatters the Court's attention.
14. Certiorari. Amicus briefs can influence the Court at the certiorari stage, but only file them in truly "certworthy" cases. Every year, the clerks and Justices process almost 5,000 new filings and they may miss an important case. An amicus brief can help a petition for certiorari that might otherwise be overlooked. In filing such a brief, emphasize the considerations that the Supreme Court will focus on in granting certiorari. Those are, mainly, conflicts among the circuits, conflicts with Supreme Court decisions, the recurring nature of the legal issue, and the practical importance of the case to a substantial number of people.
Never file an amicus brief opposing certiorari. That merely highlights the importance of the case and thus conveys an impression exactly the opposite of the impression the amicus organization wishes to convey.
15. Procedural rules. Amicus curiae briefs are almost never rejected if they comply with the Supreme Court's rules. They are rejected, however, for failure to comply with the time requirements in S. Ct. R. 36. Amicus briefs at the certiorari stage must be filed when the brief in opposition is due. Amicus briefs on the merits must be filed by the date the brief of the party supported is due.
The cover of the amicus brief must disclose whether the brief supports the petitioner or the respondent. You must list a member of the Supreme Court bar as counsel of record. You may not add names of additional amici or counsel after the brief has been filed. Nor may the brief be corrected after it is filed. If an error or omission is found, the only recourse is to ask the clerk's permission to file corrected copies.
An amicus curiae must bear in mind that it does not have the same procedural rights as parties to the litigation. Thus an amicus curiae may not obtain extensions of time for filing any document. Do not ask the parties to seek an extension to accommodate the schedule of the amicus. An amicus curiae may not file supplemental or reply briefs. An amicus curiae is entitled to file only one brief at the certiorari stage and one brief on the merits.
This catalogue of procedural problems is by no means complete. Carefully review and comply with the relevant rules of the Supreme Court. Also review the treatises. Beyond this, when drafting a brief amicus curiae, have ready at hand a copy of a brief filed recently in the Supreme Court to illustrate the correct format and arrangement of an amicus brief.
16. Minimizing costs. If an amicus curiae plans to use outside counsel to prepare a draft brief, it may save a substantial amount of money by furnishing all of the relevant research and arguments it has available. Most amicus organizations have continuing concern with legal issues and maintain libraries of briefs, memoranda, law review articles, economic studies, and the like. The amicus should furnish relevant materials to the lawyer who drafts the brief.
In addition, it is possible to make repeated use of certain portions of amicus briefs. For example, in analyzing the exclusionary rule developed by the courts under the Fourth Amendment, the Solicitor General has made repeated use of a cost-benefit analysis that originally appeared several years ago. That analysis is updated and modified as necessary in many Fourth Amendment cases. If previously formulated arguments are used judiciously, costs can be minimized without giving the appearance of a canned presentation.
Money can also be saved by filing amicus briefs in typewritten form under S. Ct. R. 33. Under that rule, however, you must prepare the brief on small pages (6" - by 9" - inches in size), with double spacing and wide margins. As a result, few sentences can be set forth on a single typewritten page. Although the Court is willing to accept typewritten briefs of this sort, Rule 33.1(a) states that standard printing is "preferred." Respect this preference unless the economics dictate otherwise.
It is now possible to use a printer with computerized typesetting equipment that is compatible with the word-processing equipment in a law office. All editorial revisions can be incorporated in the draft on the word processor. When the brief is in final form, it can be transmitted by telephone to the printer's computer and page proofs obtained within hours. This avoids the expense and delay in using traditional hot lead typesetting. With a word processor, you can produce a brief for half what it would cost with manual typesetting.