The Supreme Court adopted a variety of rule changes this week, effective January 1, 2023.  The new rules will shift the way filers prepare their briefs, from the use of “passim” in a table of authorities to the preparation of merits stage joint appendices.  Perhaps the largest change, however, relates to the elimination of the consent requirement for amicus briefs.

Under the Court’s prior rulebook, anyone who intended to file an amicus brief must first have obtained consent from all involved parties, or seek the Court’s leave via motion.

The new version of the rule strikes the consent requirement altogether. Commentary by Scott Harris, the clerk of the Supreme Court, suggests that the requirement was eliminated because virtually all amicus briefs are, as a practical matter, docketed. Although the consent requirement “may have served a useful gatekeeping function in the past,” Harris explains, “it no longer does so, and compliance with the rule imposes unnecessary burdens upon litigants and the Court.”

Amy Howe, Court drops consent requirement for filing of amicus briefs, makes other tweaks to rules, SCOTUSblog,

Deleting the consent requirement reflects how commonplace the filing of amicus briefs has become in the Supreme Court. The federal courts of appeals should follow the Supreme Court’s lead and do the same. — Lawrence S. Ebner, Executive Vice President & General Counsel, Atlantic Legal Foundation

Supreme Court Ditches Amicus Consent Requirement, Atlantic Legal Foundation,

Atlantic Legal Foundation (ALF), a long-time Cockle client, submitted a letter to the Clerk last spring, in response to the Court’s request for comments on the consent elimination proposal.

ALF’s letter offered several arguments in support of the change, including:

  • “A requirement to obtain the parties’ consent for the filing of an amicus brief is inconsistent with the true purpose of such a brief: serving as a friend of the Court.”
  • “The benefit to the Court of an amicus brief that provides helpful, non-duplicative legal argument, or additional perspective or information relevant to the question presented, should not be dependent upon the parties’ consent.”
  • “Amicus briefs serve the additional important function of opening our nation’s judicial process at the highest level to any organization or individual with an interest in the question presented by an appeal.”