Fundamentals of preparing a United States Supreme Court amicus brief.

• Author: Schweitzer, Dan

The prominence of amicus briefs in United States Supreme Court practice was dramatically illustrated during oral argument in last Term's most prominent case, Grutter v. Bollinger. (1) Less than five minutes into the argument, Justice Ginsburg posed the following question to petitioner's counsel:

Mr. Kolbo, may I call your attention in that regard to the brief that was filed on behalf of some retired military officers who said that to have an officer corps that includes minority members in any number, there is no way to do it other than to give not an overriding preference, but a plus for race.... What is your answer to the argument made in that brief that there simply is no other way to have Armed Forces in which minorities will be represented not only largely among enlisted members, but also among the officer cadre? (2) The next several minutes, and the first several minutes of Solicitor General Theodore Olson's argument, were devoted to addressing the retired officers' amicus brief. (3)

To be sure, few amicus briefs (apart from those filed by the Solicitor General) have such a profound effect on the course of an argument or decision. (4) But virtually all amicus briefs are read by the Justices and/or their clerks, and the submission of such briefs is an established and accepted part of Supreme Court practice. (5) It is therefore incumbent upon persons and entities with a stake in Supreme Court cases to understand the amicus brief process and the types of arguments that are effective in an amicus brief.

Supreme Court amicus briefs are unique documents that pose strategic and often new challenges to even the most experienced appellate advocate. The Court has its own set of rules and customs, as well as a unique outlook arising from its position atop our judicial system. Arguments that would be powerful before a federal court of appeals--such as the decisions of other federal courts of appeals--carry far less weight in the Supreme Court. Policy arguments, on the other hand, are often far more important to the Supreme Court than to other courts. This Article seeks to assist practitioners in navigating through the shoals of Supreme Court practice and crafting amicus briefs that move the Court in their direction.

Part I below reviews the procedural rules governing amicus briefs; Part II discusses the role of amicus briefs and their subject matter; and Part III addresses the specific sections of amicus briefs.

1. THE RULES

   Rule 37 of the Rules of the Supreme Court specifically addresses amicus practice, but you should also study Rule 29 (on filing and service), Rule 30 (on computation of time) and Rule 33 (on document formatting, including page limits and cover colors). The following is a brief rundown of the most important requirements.

   * Consent. As a general matter, an amicus brief may only be filed if the parties consent or the Court grants a motion for leave to file an amicus brief. (6) The Court grants such motions (when timely filed) as a matter of course; knowledgeable counsel for parties therefore agree to most requests for consent. Consent is not required of the United States, of States, or of local governmental units with respect to amicus briefs filed by the Solicitor General, state Attorneys General, or authorized local law officers, respectively. (7) A government amicus brief does not have to alert the Court to this fact in the brief; the Court knows. * Disclosure footnote. In 1997, the Court adopted Rule 37.6, which requires most amicus briefs to disclose, in the first footnote of the brief, "whether counsel for a party authored the brief in whole or in part and [to] identify every person or entity, other than the amicus curiae, its members, or its counsel, who made a monetary contribution to the preparation or submission of the brief." Excluded from this requirement are the same governmental entities specified in Rule 37.4 as not needing to obtain consent. (8) * Color. At the certiorari stage, the covers of amicus briefs must be cream colored. At the merits stage, they must be light (pale) green if in support of the petitioner, appellant or neither party; and dark green if in support of the respondent or appellee. (9) * Page limits. Amicus briefs at the certiorari stage may not exceed twenty pages; at the merits stage, they may not exceed thirty pages. (10)

   * Cover page. Rule 34.1 sets forth what belongs on the cover page of a brief filed with the Supreme Court, and it fully applies to amicus briefs. One point to remember: specify whom the brief supports (e.g., the Brief of the States of X and Y as Amici Curiae in Support of Petitioner).

   * Contents. According to Rule 37.5, a Supreme Court amicus brief must contain the following subsections: Interest of the Amicus Curiae; Summary of Argument; Argument; and Conclusion. Other sections, such as Statement of the Case, are optional.

   Practice pointer: There is a slight twist for amicus briefs that support a cert petition. Because cert petitions are not required to have a Summary of Argument, as a matter of custom amicus briefs in support of cert petitions need not include such summaries either.

   * Timing. Amicus briefs in support of cert petitions are due on the date on which the brief in opposition is due. (11) Amicus briefs on the merits are due on the date on which the brief for the party that amici are supporting is due. (12) If you are supporting neither party, the amicus brief is due on the date on which petitioner's (or appellant' s) brief is due. (13)

   Practice pointer: Keep an eye out for extensions of time granted to parties, especially at the certiorari stage. These extensions change your due date, and you should take advantage of them. The Court frequently grants extensions of time in which to oppose cert petitions--and when the United States is the respondent, it often seeks such an extension. By filing your amicus brief on or just before the new due date, you obtain more time to polish your brief and convince additional persons or entities to join it.

   Practice pointer: Conversely, the petitioner needs to inform you if the respondent waives his or her right to file a brief in opposition. If respondent chooses that tack, the cert petition will be circulated to the Justices far sooner than expected. This means you have to expedite completion of the amicus brief so that it will be filed in time for the Justices and clerks to have it while they ponder whether to order respondent to file a response to the petition.

2. THE ROLE AND SUBJECT MATTER OF AMICUS BRIEFS

   Any effective amicus brief abides by the instruction given in Supreme Court Rule 37.1: It "brings to the attention of the Court relevant matter not already brought to its attention by the parties." This means consulting with the party whom your brief will support and determining what additional arguments you can make that would favorably influence the Court. The Justices and their clerks will not be influenced by a brief that merely parrots the arguments made in the party's brief.

   What, then, should an amicus brief contain? This depends, first, on whether the brief supports a cert petition or supports a party in a case before the Court for oral argument (hereafter, a case "on the merits"). Indeed, those two types of briefs have such different objectives that they must be analyzed separately.

   1. Amicus Briefs Supporting Petitions for Writs of Certiorari

      To understand the role of an amicus brief in support of a petition for certiorari, one must understand the certiorari process. The Supreme Court grants very few cert petitions--it granted only about two percent of the petitions filed in the 2002 Term. The key for a petitioner, therefore, is to distinguish its case from the other 150 or so being reviewed that particular week.

      In attempting to convince the Court to grant a cert petition, the petitioner (and its amici) must keep in mind that the Court does not grant certiorari simply to correct errors of the lower courts. It grants certiorari for the following reasons, in descending order of importance:

      * there is a conflict among the federal courts of appeal and/or state supreme courts;

      * the issue is extremely important;

      * the decision below conflicts with Court precedent;

      * the Court left the issue open in a prior case; and/or

      * there is tension among prior Court decisions. (14) The second factor importance comes into play in several ways. Standing on its own, a compelling showing of importance occasionally leads to a grant of certiorari even where the lower courts are not in conflict. Moreover, a circuit split is often, but not always, enough to obtain a grant of certiorari. A compelling showing of importance can convince the Court that your circuit split needs prompt resolution, or that certiorari should be granted even where the conflict among the lower courts is not direct or is between only two courts.

      An amicus brief...