Mike Dorf offers a welcome suggestion: the Supreme Court should eliminate the requirement that amici have to seek leave of the parties.
The Court should simply abolish the requirement of consent with the backstop of leave and allow anyone and everyone who wants to file an amicus brief to do so. The fact that many parties give blanket consent shows that the world will not end if parties no longer play a gatekeeping role. And it's a waste of the Court's time to have to decide whether an amicus brief should be allowed. It's easier just to start reading and put down a brief that proves unhelpful.
Generally, after certiorari is granted, blanket consent is provided. At this juncture, the parties are usually represented by frequent participants before the Supreme Court. They understand the game, and recognize that withholding consent is futile. However, at the cert stage, parties are often represented by counsel who do not frequently participate before the Supreme Court. At this juncture, consent is often denied; counsel think there is some advantage for doing so. (There is no advantage.) Thus, amici have to seek leave of the Supreme Court. So long as the brief meets all of the formalities, the Court will grant leave.
But why bother with this additional step? Dorf explains:
Requiring consent of the parties seems rooted in the fiction that the Supreme Court sits to resolve disputes between parties. That's a formal limitation on its jurisdiction per the case-or-controversy requirement, but given the discretionary nature of Supreme Court review and its use in cases that present important questions, the Court is not a court of error.
I emphatically agree. The Court should dispense with this requirement, and permit amici to submit briefs without seeking leave.
Indeed, this rule should be extended to the lower courts. I've found that in the Circuit Courts, and especially the District Courts, parties routinely withhold consent. Even the federal government. The Solicitor General's office will usually grants blanket consent at the Supreme Court. In my experiences, DOJ Civil Appellate does grant consent, though they may inquire about the contents of the brief. A slight burden, but a reasonable request.
However, in the District Court, DOJ Federal Programs "takes no position" on amici requests. That posture still requires seeking leave of court. This process is a waste of time. The motion will be granted. There is no reason to force amici (often working pro bono) to prepare an additional motion, which the court then needs to rule on. And, in almost every case, the lower court will grant the motion.
There is another obstacle to filing amicus briefs in the District Courts: Pro Hac Vice fees. In the Southern District of New York, for example, that fee is $200. Attorneys who represent paying amici can easily be reimbursed for this fee. However, attorneys who represent amici pro bono cannot be reimbursed for this fee. In some cases, law firms may eat the fee. But for academic amici, law schools may not have the budget for such expenditures. (Mine does not.) Moreover, when several professors sign the brief, each attorney must pay the fee.
My proposal: create a fee waiver for attorneys who represent amici pro bono. Alternatively, so long as one attorney on the brief is admitted to the district, pro hac vice fees should be waived for other attorneys who represent the amicus pro bono. Courts should incentivize, not discourage amici filings from parties who are not financially interested.
Update: Several colleagues have told me that district courts routinely deny leave to file amicus briefs. Here is one such decision from the District of Arizona:
Lastly, the Court observes that the Arizona Prosecuting Attorneys Advisory Council, Pima County Attorney's Office, Arizona Crime Victim Rights Law Group, Arizona Coalition to End Domestic Violence, and National Crime Victim Law Institute have filed amicus curiae briefs. (Docs. 38, 40, 41.) The Court generally does not favor amicus curiae briefs and does not permit them to be filed absent consent of all parties or a substantial showing that the amicus curiae will present relevant matters that have not or could not have been brought to the Court's attention by the parties. Therefore, not having obtained leave of Court and satisfied the above, the amicus curiae briefs with be stricken. Any request for leave to submit an amicus curiae brief may be filed following the filing of a responsive pleading by an amended defendant in this action.
This standard, which is not set by any rule, is far too stringent: counsel must make a "substantial showing that the amicus curiae will present relevant matters that have not or could not have been brought to the Court's attention by the parties." If a District Court spends the time to review an amicus brief, then there is zero marginal cost to admit the brief into the record. Such a decision does not constitute an endorsement of the content.
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