Tuesday, June 16, 2009

How To Be A "Friend-of-the Court" in the Supreme Court

Because of two of my recent blogs--"Fingers Needed for Crumbling Dike" and "Amicus Curiae Brief in United States v. Stevens"--I have been asked to explain exactly how one can file a "friend-of-the-court" brief in the Supreme Court of the United States.

The short answer is, "easily."

Supreme Court Rule 37. "Brief for an Amicus Curiae," provides that "1. An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored."

There are two ways to accomplish filing a "friend-of-the-court" brief.

One is by obtaining the consent of the parties. In our recently filed amicus curiae brief in United States v. Stevens, the government is represented by the Solicitor General's office of the Department of Justice. As it invariably does, it filed with the clerk of the Court a blanket permission for amicus curiae briefs to be filed. Stevens is represented by a prominent Washington, DC, law firm which specializes in Supreme Court cases. It, too, filed a blanket permission, which is the customary collegial practice.

If one party to the case declines to grant permission, a prospective amicus curiae may ask the Court for permission, and attach to the application a copy of the proposed brief--which, of course, does put it before the Court even without a party's permission or the application being granted.

This said, I continue to marvel at the disinterest in filing amicus curiae briefs shown by organizations with a stake in Supreme Court decisions. Especially when one considers the time, cost and groveling required in the mostly unproductive attempt to lobby legislators.

Just look at some of the cases the Court has already agreed to review in its October 2009 Term, which begins in October, let alone those yet to be accepted.