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Amicus Briefs at the Cert Stage:
Over at Slate, Adam Chandler has an interesting essay on the use of Supreme Court amicus briefs at the cert stage. (In English, those are written legal arguments filed by "friends of the court" — that is, folks other than the litigants themselves — on whether the Supreme Court should take a case.)

  By way of background, such briefs are almost always in support of the petition. They are designed to get a law clerk's attention and make the dispute appear more nationally important, and therefore increase the chances the Court will grant cert. In particular, amicus briefs make the stack of briefs that the clerk receives more formidable: They send a message to the clerk writing the pool memo that says "this one is important and probably has a chance, so set aside some time for it." Plus, amicus briefs are identified in pool memos: Their arguments are usually summarized in in a short paragraph after the arguments of the parties. For these reasons, cert-stage amcius briefs can increase the chances that the Court will "flag" the petition as something unusually important. Almost no one files amicus briefs against certiorari, as it would very likely backfire: Such a brief would tell the Court that you think the case is so important that you've written in to keep the Justices out, which only makes them more interested.

  Some stats from the essay:
  Between May 2004 and August 2007, nearly 1,000 private organizations filed cert-stage briefs. Only a few make it a habit—just 16 groups filed eight or more early-bird briefs a piece. Ten of those top amici serve business interests and conservative causes. They include the Products Liability Advisory Council, the Pacific Legal Foundation, and the National Association of Manufacturers. And the king of the amici, the U.S. Chamber of Commerce, filed 55 briefs over the period studied, or about 17 each year.
  Among the top 16 cert-stage amicus filers, the National Association of Criminal Defense Lawyers is the only one that might be considered a liberal interest group. It ranked second to the Chamber of Commerce with 33 briefs. The American Civil Liberties Union tallied just two cert-stage amicus briefs during the three years under review.
  I wonder if cert-stage amicus briefs might be a good project for some of the law school clinics that are cropping up and are looking for cases. It's less sexy to write a cert-stage amicus brief than a merits brief, of course. But such briefs can have a recognizable impact by explaining the stakes of a case in a way that petitioners themselves often can't.
OKY:
If the premise is that these briefs are helpful because they give the court specialized knowledge from an experienced institution, then I'm unclear what role law school clinics can play. Unless it's Richard Lazarus's clinic explaining an environmental case or something similar.
12.5.2008 1:42pm
OrinKerr:
OKY,

Most cert stage amicus briefs don't provide specialized knowledge: In most cases, they explain why a case between two parties has national significance in the broader scheme of the law.
12.5.2008 1:45pm
AndrewK (mail):
If by "stakes" we mean superficial policy implications, if I were a judge, I would not even read the amici, but just look at the names of those filing.

Given the sorts of cases university clinics take up, cert stage petitions would just exacerbate this. So if the point is to get good experience, sure, great idea. But if the point is to actually give the Court information, not such a great idea.

If on the other hand, universities establish themselves as looking for doctrinal problems rather than simply advocating a policy position, the effort might be fruitful.

I'm curious about the "you don't file cert amici if you are against the cert" point. I like throwing wrenches in the works, and I could see myself writing absolutely awful red herring cert supports that would obscure the issues to annoy the Court and make them deny cert where cert might otherwise be appropriate. Reputation might develop, but for the first such petition (and in the short term), why not?
12.5.2008 1:58pm
merevaudevillian:
Could anyone submit an amicus brief, even if somewhat incompatible with the original cert petition? Is it limited to the questions presented in the original cert petition, or would it just be futile if an amicus brief went beyond? I'm thinking in particular if a conservative group had filed an amicus brief in the Partial Birth Abortion Ban case, arguing that the Ban is incompatible with the Commerce Clause. The petitioners did not want to address the Commerce Clause issue, but a third party might.
12.5.2008 2:00pm
Steve:
I think those professors from Scooter Libby's case need to get involved in this posthaste.
12.5.2008 2:33pm
Proud to be a liberal :
Of course, it is only worthwhile to seek cert if one thinks that the Supreme Court would be included to reverse the decision that would be appealed. Given the current composition of the court, it might be better to have one bad decision from a circuit court than a bad opinion from the Supreme Court. Upon reading the slate article, I thought that perhaps some lawyers made a tactical decision not to do amicus work at the cert. stage.
12.5.2008 2:48pm
Federal Dog:
Why would any law instructor or students be able to explain the stakes of a case better than an experienced practitioner representing the petitioner?
12.5.2008 2:57pm
CVMe:
Proud:

I happen to know that some organizations, upon being asked to file a cert. stage amicus in support of a position they would favor, give the excuse that it's better to have the law undecided (and favorable to their side in some circuits, if there is a circuit split) than decided by the Supreme Court and therefore unfavorable in all circuits. This is despite a sympathetic client and facts that present the issue in the best light for their side.

The problem with the reasoning, which is supported by the article's statistics, is that the other side (conservative-leaning groups) are filing cert. stage amicus briefs, bringing more attention to the cases that present unfavorable facts or less sympathetic clients for the progressive side.

There is a question of whether this truly lines up to the detriment of progressive organizations' positions. The chamber of commerce isn't filing in most immigration and criminal cases, for instance.
12.5.2008 3:02pm
one of many:
CVMe,

the reason given (leaving the law undecided) is probably the exact opposite of what business groups (the 4 mentioned are all business groups) want. Business (as a whole) would rather have settled law regardless of which way it is settled than unsettled law which means you cannot decide what is permitted or not. The Slate article doesn't provide information on which 'conservative' groups filed the petitions but I suspect most if not all of them are business groups instead of an admixture of conservative interest groups.
12.5.2008 3:24pm
Bama 1L:
Business (as a whole) would rather have settled law regardless of which way it is settled than unsettled law which means you cannot decide what is permitted or not.

Business would like settled, uniform law that favors itself. You didn't want to have to write your contracts differently for Wisconsin customers, worry about different tort liability in Alabama, adopt different personnel policies in California, etc. Also notice business defendants' preference for federal court.

So it makes sense that business advocacy organizations are filing lots of cert-stage amicus briefs. They are hoping to get national rules pronounced by the federal courts.
12.5.2008 4:13pm
corneille1640 (mail):
My question is similar to Maurevaudevillian's: does one need permission from one of the litigants to file an amicus brief on that litigant's behalf? Can I, as a private citizen (and non-lawyer) simpler file my own brief for a case that might be presented to the SCOTUS for cert., or, for that matter, could I present an amicus brief for any case before the Court?
12.5.2008 4:21pm
OrinKerr:
Why would any law instructor or students be able to explain the stakes of a case better than an experienced practitioner representing the petitioner?

The experienced practitioner can try to take the case: They all try. But an amicus brief says that someone outside the lawyer hired to make that case actually cares and actually agrees. A lot of the challenge in a petition is persuading the Court that the issue is so important that it should be one of the 75 cases on the court's docket, and the help of someone who is not being paid by the petitioner can be very helpful.

As for why subject matter experts can explain the importance of an issue better than generalists, I think there are two reasons. First, they understand the subject better, and can therefore see connections that generalists cannot. Second, a subject matter expert may have more credibility: The mere fact that they see it as important is probably a pretty good sign it is.
12.5.2008 4:53pm
db:
This is a brief that UVA's clinic recently prepared on behalf of several local government organizations in support of the petition in Alabama v. Pope. I think I've seen cert-stage briefs from other clinics (although not from Stanford, which seems to have a new case of their own granted at every conference). So at least some of these clinics have already taken Professor Kerr's advice, which I think is a good thing: this role gives clinics a chance to get their foot in the door and to expand their dockets.

It's also worth noting that the Slate article understates the extent to which the lineup of amici at the cert stage favors "conservative" causes. As explained here, Slate's figures exclude briefs filed by groups of states. The states frequently file amicus briefs at the cert stage in civil rights and criminal cases, generally seeking to drive home the practical importance of the circuit split identified in the petition. Professor Kerr would have more insight into this, but I suspect that these briefs can be very influential: other than the SG, I bet a group of 25-30 of states is likely to do a better job of getting the Court's attention than any other amicus can.
12.5.2008 4:57pm
The River Temoc (mail):
Do Supreme Court clerks actually read all these amicus briefs at the cert stage, or do they generally stick to the executive summaries?
12.5.2008 5:17pm
Federal Dog:
"As for why subject matter experts can explain the importance of an issue better than generalists, I think there are two reasons. First, they understand the subject better, and can therefore see connections that generalists cannot. Second, a subject matter expert may have more credibility: The mere fact that they see it as important is probably a pretty good sign it is."


I guess you are assuming that practising attorneys must be "generalists," as opposed to "subject matter specialists." That is not a persuasive assumption. Further, students (certainly) and classroom instructors (generally) lack extensive practice experience necessary to understand practical consequences of results they urge.

I see no harm in having students or instructors file a brief, but assuming that they are somwhow in a better position than practising attorneys to explain the stakes of a case does not stand to reason.
12.5.2008 5:28pm
OrinKerr:
Federal Dog,

The paragraph you excerpt refers to subject matter "experts", not subject matter "specialists." A specialist is someone who practices a lot in an area: an expert is someone who has tremendous knowledge about it. The two are quite different.

Perhaps I can best make my point with an example. Let's say there's a first amendment case filed by a very good attorney in Boston who has been practicing for 30 years. He claims, as all cert petitions do, that his case raises a really important question. Now assume that Eugene Volokh writes an amicus brief in the case explaining that in his opinion, the Court should grant cert: The case really is a tremendously important and recurring issue that demands a clear rule.

In my view, such a an amicus brief would have a lot of influence: Eugene could very probably explain the importance of the case in the broad scheme of First Amendment law better than the practitioner, and certainly folks would notice the name as someone with credibility in the first amendment area.

I suppose part of our apparent difference of opinion may be that you may be assuming the briefs are written by students and then reviewed by "instructors," whoever they are: I am assuming that the students do research and perhaps try drafts, but that the petitions are actually written by the professors involved who have their names on the briefs.
12.5.2008 5:55pm
David Schwartz (mail):
I can think of one good reason to file an Amicus opposing cert that might have the desired effect or helping to get cert denied. Suppose you believe that the court case is basically a sham designed specifically to get a particular precedent with one of the parties presenting weak arguments or presenting the worst possible situation in which to address a critical area of law.

For example, the S.C. is very unlikely to interpret the computer fraud and abuse act to support Lori Drew's conviction, but if there's any case in which they might, it's Drew's.

Similarly, the Napster case was the first case involving a duty to police P2P networks. What could be a worse possible case to be the first to move to high courts on a critical question of culpability than setting a precedent based on a company that essentially was specifically created to help people break the law.

So you would basically be saying, "this is an important area of law that will affect many people, but this is the worst possible case with which to address it".
12.5.2008 6:58pm
db:
Orinkerr:

I suppose part of our apparent difference of opinion may be that you may be assuming the briefs are written by students and then reviewed by "instructors," whoever they are: I am assuming that the students do research and perhaps try drafts, but that the petitions are actually written by the professors involved who have their names on the briefs.


In my experience in one of these clinics, the students were involved in every stage of the process: finding certworthy cases, initial research, several rounds of drafting and revisions, and final production tasks. To be sure, our instructors revised most of what we wrote beyond all recognition. But I can still find passages in the briefs we filed that that made it through just as I'd drafted them.

More responsive to Federal Dog's concerns, I think, is that all of these clinics are affiliated with Supreme Court practitioners. While classroom professors may be in the mix, too, the practitioner's perspective is still there.
12.5.2008 6:59pm
Federal Dog:
Again, I see no harm in having students or instructors file any brief. It is, however, unpersuasive to claim that classroom residents are somehow in a better position to explain the stakes of any case than professionals who deal daily with the consequences of judicial decisions.
12.6.2008 6:02pm

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