During the 2014-2015 Supreme Court term, amicus briefs were filed in 98 percent of merits stage cases. A total of 781 amicus briefs – or almost 12 per case – were filed in controversies set for oral argument last year.
“That’s more than double the briefs-per-case filed in the 1990s, and 12 times those filed in the 1940s-1950s.” Anthony J. Franze and R. Reeves Anderson, Record Breaking Term for Amicus Curiae in Supreme Court Reflects New Norm, The National Law Journal (August 2015).
The 2014-2015 term broke records for most amicus briefs filed in a single case (147 in No. 14-556; Obergefell v. Hodges) and the most signatories on a single brief (207,551 signatories calling for full nationwide marriage equality via The People’s Brief filed in Obergefell).
The 2012-2013 term saw a record 1,001 amicus briefs filed in 73 decided cases – averaging 14 amicus briefs per case – a Court record. Franze and Anderson at 1. That year the consolidated marriage equality cases – Windsor and Perry – generated a combined 156 amicus briefs between the two decisions. Id. The 2011-2012 term saw 136 amicus briefs filed in the companion health care cases alone.
Those are a lot of numbers to illustrate an obvious point: Supreme Court amici participation has never been higher. But how influential are these new “friends of the Court?” According to the Justices who have openly applauded their expertise, very.
Justice Breyer has said that these briefs ‘play an important role in educating judges on potentially relevant technical matters, helping to make us not experts but educated lay persons and thereby helping to improve the quality of our decisions.’ Justice Alito concurs, observing that ‘
[e]ven when a party is very well represented, an amicus may provide important assistance to the court . . . [by] collect[ing] background or factual references that merit judicial notice.’ And former Supreme Court law clerks have remarked that it is the ‘non-legal’ information provided by amici that is the most useful.William & Mary Law School William & Mary Law School Research Paper No. 09-273 100 Va. L. Rev. 1757 (2014). According to the article’s author Allison Orr Larsen, “there have been 606 citations to amicus briefs in the 417 Supreme Court opinions decided from 2008 to 2013. Id.
The rise in the number of amicus briefs, and their importance to the Court’s consideration of a case on the merits (as well as to the decision to grant discretionary review in the first place), heightens the importance of parties obtaining solid amicus support for their petition and merits briefing.
Amicus support at the petition stage is most helpful in demonstrating the widespread importance of the issue and need for immediate guidance from the Court. At the merits stage, an amicus can fill one of three important roles, according to Inside Counsel’s M.C. Sungaila (a Cockle client). Amici can contribute by:
- Amplifying or supplementing the legal and factual arguments of the parties, or presenting an alternative argument not raised by any party;
- Pointing out unintended consequences of a decision or rule on people or groups not party to the case; and
- Communicating the importance of the case by their very presence. Amicus briefs often cite additional legal citations, policy considerations and social science data that courts find helpful.
M.C. Sungaila, The Ins and Outs of Amicus Briefing: The Increasing Influence of Amicus Briefs, InsideCounsel.com (Jan. 2015).
If you are considering the submission of a petition or merits stage amici brief, give Cockle a call at (800) 225-6964 to discuss amici quiddities and cost.