Public interest groups, legal clinics, and state Attorneys General file amicus briefs in the Supreme Court to provide data and perspective to the Justices to assist in deciding complex cases. For example, a well-crafted amicus brief can present argument or cite authorities not found in the parties’ briefs, and can play an important role in the rationale of a decision.
As you plan to file your Supreme Court amicus brief, keep these procedural notes in mind:
Petition-Stage Briefing
Studies have shown that the filing of an amicus brief in support of a petition at the petition stage can increase the grant rate anywhere from 8 to 37 percent.
- 10-Day Notice Requirement
Counsel for an amicus shall ensure that all parties receive notice of the intent to file at least 10 days in advance of the brief’s due date, unless the amicus brief is filed more than 10 days in advance of the deadline.
Counsel should indicate that “timely” or “10-day” notice is given in footnote one, on the first page of the brief. Note: even governmental organizations are subject to the notice requirement at the petition stage.
Additionally, counsel should indicate in footnote one that the parties have consented to the filing, and that:
- No counsel for a party authored the brief in whole or in part; and
- No counsel made a monetary contribution intended to fund the brief’s preparation, or submission.
- If Consent is Withheld, a Motion is Required
Though motions for leave to file amicus briefs without the parties’ consent are generally disfavored, they are liberally granted. If consent is withheld, counsel should prepare a motion (which follows the cover) stating the amici’s interest in the case, whether consent was requested, and which party withheld consent. The motion is typically short – 300 words or less – though counsel is allowed up to 1,500 words.
- Evidence of Consent
The Clerk’s Office wants to see documentation of the parties’ consent. Cockle will file copies of the consent letters or email trails reflecting consent (unless blanket consents appear on the Court’s docket).
- Due Dates
Petition-stage amicus briefs in support of the petitioner must be filed within the time originally allotted for the Respondent’s brief in opposition (30 days from the petition’s docketing date or Court request to file a brief in opposition). Amici are never granted extensions of time in which to file at the petition-stage. Counsel must meet this original due date, unless the brief is in support of the respondent and the respondent is granted an extension.
Merits-Stage Briefing
An amicus brief was filed at the merits-stage in 70 of the 73 cases during the Court’s 2012-2013 term (a rate of almost 96 percent). The number of briefs filed in high profile cases that term was eye-popping:
Hollingsworth v. Perry: 96 amicus briefs.
Fisher v. University of Texas: 92 amicus briefs.
United States v. Windsor: 80 amicus briefs.
Kiobel v. Royal Dutch Petroleum Co.: 51 amicus briefs.
Shelby County, AL v. Holder: 49 amicus briefs.
- Footnote One
Again, counsel must demonstrate that the parties have consented to the filing, did not author the brief in whole or in part, and made no monetary contribution to its submission. Unlike for petition-stage briefs, counsel need not give advance notice of the intent to file. Governmental organizations do not need any averments in footnote one at the merits-stage.
- Due Dates
Merits-stage amicus briefs are due within seven days after the party being supported. Counsel may not seek an extension, but are allowed to file at a later date so long as the party supported receives one. Note: If the party supported files early, counsel must meet the truncated time period.