Amicus curiae briefs can play an important role in Supreme Court advocacy by bringing relevant facts and argument to the Court’s attention that the parties have not addressed. Therefore, Amici have a unique opportunity to shape the outcome of a decision.
The incidence of Amicus curiae participation in the Supreme Court has increased dramatically over the past decade. Each term, thousands of petitions for a writ of certiorari are filed while only about 75 are granted. Among those thousands of petitions, only a few receive support from Amici. Studies indicate that Amicus briefs at the certiorari stage have a significant impact on the probability of a grant — an Amicus brief can draw attention to a petition that might otherwise be overlooked.
There are, however, a few important pitfalls that Amici counsel should avoid when drafting a brief:
Avoid an Argumentative Appendix
Counsel is required to present the interest(s) of the Amici in the body of the brief. This section counts against the allotted word limit (6,000 for petition stage and 8,000 or 9,000 for merits stage, depending upon type of Amici involved (non-governmental v. governmental)).
Briefs with numerous Amici parties present a unique challenge for filers in structuring their interest of Amici curiae section. Explaining the group’s collective interest may be relatively straightforward, but the question becomes where can you list all the individual Amici, along with their individual interests?
An appendix can be used to list all the individual Amici parties but caution should be exercised to ensure that it is only a listing of the Amici. Providing argumentative statements about an Amici’s interest in an appendix is viewed as skirting the word count and may result in rejection of the brief.
The appendix should include only general biographical information such as the name, location, institutional affiliation, and area of expertise; any additional information that is perceived to present argument should be included in the interest of Amici section.
Example #1 – not argumentative, allowed in appendix:
The Electronic Privacy Information Center (EPIC) is a public interest research center in Washington, D.C. EPIC was established in 1994 to focus public attention on emerging civil liberties issues.
Legal Scholars and Technical Experts
[Appendix lists numerous other scholars and experts]
- Anita L. Allen, Henry R. Silverman Professor of Law and Philosophy, Vice Provost, University of Pennsylvania Law School.
- Ann M. Bartow, Director, Franklin Pierce Center for Intellectual Property and Professor of Law, University of New Hampshire School of Law.
Example #2 – argumentative, not allowed in appendix:
Amici curiae are seventeen individuals residing in five states.[Appendix lists names of Amici and state resided in].
The issues presented in this case directly affect Amici and many other individuals in their communities. The addition of a citizenship question to the 2020 Census questionnaire will result in a substantial differential undercount of Hispanic and noncitizen populations. Amici reside in states, districts, and localities with substantial Hispanic and noncitizen populations that will be among the worst affected by this differential undercount. Plaintiffs will suffer a loss of political representation either because their states will lose congressional seats, or because plaintiffs will be drawn into overpopulated voting districts, or both. Many Amici also rely on federal funding programs calculated based on census data, and will suffer a loss of funds as a result of an undercount.
An Amicus brief that only reiterates a party’s arguments and otherwise offers nothing new has no value to the Court. The brief should not provide background information that the parties have already covered in their principle briefs.
Avoid Overzealous Advocacy
Amicus briefs should aid the Court in its decision but refrain from conspicuously advocating for a specific party. An overzealous or overly-argumentative Amicus brief can damage the author’s credibility. A well-written Amicus brief often focuses on a single, discrete issue and addresses potential countervailing arguments.