Monday, October 21, 2019

With Amici Like These . . .

by Michael C. Dorf

On Thursday of last week, the Supreme Court issued official guidance regarding the filing of amicus briefs. Most of it simply collects what's already in Supreme Court Rule 37, but even so it's useful. For a summary of the guidance (which is itself pretty short), here's a helpful article on Bloomberg. I'll offer some critical thoughts on a couple of points: (1) party consent; and (2) colors.
Under Rule 37 and as reiterated in the guidance, as a prerequisite to filing an amicus brief, the filer must either receive written consent from all parties or seek leave of the Court to file. The guidance document notes that many parties give blanket consent to the filing of amicus briefs. Sometimes parties will withhold blanket consent but agree to cross-approve each other's amici. Under such an arrangement, an amicus brief in support of petitioner that garners consent from petitioner will then receive automatic consent from respondent, and vice-versa. When the parties do not all consent to the filing of an amicus brief, the request for leave from the Court can be in the brief itself, typically explaining why the brief adds a valuable perspective.

This whole enterprise is misbegotten. The Court should simply abolish the requirement of consent with the backstop of leave and allow anyone and everyone who wants to file an amicus brief to do so. The fact that many parties give blanket consent shows that the world will not end if parties no longer play a gatekeeping role. And it's a waste of the Court's time to have to decide whether an amicus brief should be allowed. It's easier just to start reading and put down a brief that proves unhelpful.

Moreover, an amicus brief might be most useful in just those cases in which one or more parties don't consent to it, because in such circumstances there's a decent chance that the amicus brief presents information or arguments tending to show how various potential rulings could have third-party effects. Requiring consent of the parties seems rooted in the fiction that the Supreme Court sits to resolve disputes between parties. That's a formal limitation on its jurisdiction per the case-or-controversy requirement, but given the discretionary nature of Supreme Court review and its use in cases that present important questions, the Court is not a court of error.

Meanwhile, the Court's rules and their application are overall a bit picky. I can illustrate with my own run-in with the rules governing the color of a brief's cover. Rule 33 sets out the color requirements for the covers of briefs. A cert petition gets a white cover, an opp cert is orange, petitioner's merits brief is light blue, respondent's is red, etc. Crucially for our purposes: an amicus brief in support of the petitioner is light green, while an amicus brief in support of the respondent is dark green.

But what is dark green? Here's an amicus brief in which I had a hand in support of respondents:


That looks dark green, but here's another one I recently had a hand in, also for respondents:


That looks suspiciously like light green, which I think is mostly an artifact of the lighting in my office and the limits of my camera phone, but even in real life the two brief covers are somewhat different colors. Moreover, we can't attribute the lighter color of the second one above to fading, because it's a brief for a case being argued this Term. The good news is that it must have counted as sufficiently dark green for the Court to accept it.

Wait, what? You're thinking the Court doesn't reject briefs for being the wrong shade of green. Think again. Here's an amicus brief on behalf of respondent that got me into trouble in the late 1990s:


After the brief was filed, the clerk's office contacted my co-counsel and me to tell us that it was rejected because one of the justices complained that it wasn't dark green. In my defense, I actually didn't know what color the cover was at the time. I'm not color-blind, but I didn't see the cover before it was filed. Co-counsel and I were donating our time and a law firm was donating its support services, which meant printing and binding the brief. We emailed the firm the final version as a Word doc in black and white, the firm printed it, including putting the cover page on the "dark green" stock, bound it, and delivered the requisite number of copies to the Court and the parties. (These were the days before the electronic filing requirement.) Because co-counsel and I hadn't seen the filed version of the brief, when the clerk told us the cover wasn't dark green, we assumed it was some very different color. We contacted the firm immediately; it produced a more conventional dark green cover; and that day we filed the substitute copies, along with a very short motion to allow the filing nunc pro tunc, in light of the fact that the version with the improper color cover had been filed within the deadline. The Court accepted the re-filed version and Justice Souter even cited it in his concurrence in the judgment in the case (which the side we were supporting lost unanimously).

A few days later, I received in the mail the original version shown above. I admit that it is a somewhat creative take on dark green, more of a greenish gray, I suppose, but come on! Really? What possible purpose was served by requiring the reprinting and re-filing of a brief just so its cover would be more clearly dark green? Is there some serious risk that if the justices don't police the color of brief covers anarchy will be unleashed at One First Street, NE? Will parties and amici start filing briefs with hot pink covers to draw attention? Rainbow-covered briefs? Bedazzled briefs? And if any of that were to occur, wouldn't that be, I don't know . . . kind of awesome?

By contrast with my proposal to abolish the consent requirement for amicus briefs, I don't propose abolishing the requirements of different colors for different briefs. The rule is relatively easy to comply with (especially if one uses the services of the very small number of companies that specialize in printing Supreme Court briefs) and serves a reasonable purpose: it enables the staff of the justices to file briefs in an orderly fashion without examining them closely. But I do think that, as my experience illustrates, there's no point in expending any resources in strictly enforcing the color limits.

13 comments:

Shag from Brookline said...

Any idea as to how many Justices actually read all amici briefs? Are they filtered by their clerks or by colors?

Michael C. Dorf said...

Most cases attract relatively few amicus briefs. "Big" cases attract a great many. Justice Kennedy's practice was to read all the party briefs and have the law clerk assigned to the case identify the two most useful amicus briefs on each side for him to read as well as to summarize any other useful additional info in the remaining amicus briefs that wasn't in the other briefs. I can't speak to the current practices of the justices.

Joe said...

During oral arguments, sometimes the color scheme comes up when such and such brief is referenced. Amicus briefs at times are referenced, such as the military brief in support of affirmative action. Justice Breyer repeatedly references briefs.

I see Prof. Dorf's twice cited by the Souter concurrence (an excellent one) though not the brief itself. Might be missing it.

Anyway, there are "briefs in support of neither party" and so forth. And, the concept in theory are that they are "friends of the court" so approval does seem silly. A few of these things are rather dubious especially in the more ideological cases but even there it would seem that the Court itself might have the obligation not to accept them.

Not that even there does it seem a good use of their resources. The color thing does seem anal at some point. If the brief simply can be re-submitted, that seems okay. Plus, in the case cited we basically have "professionals" who it is okay to require just that. Anyway, with all the briefs, color coding apparently helps them handle all that paper.

Michael C. Dorf said...

The Souter concurrence cites our brief as follows: "See App. to Brief for State Legislators as Amici Curiae 1a-2a."

Joe said...

Thanks.

This issue popped up in a case on the Order List today.

https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/19-274.html

(Blanket Consent filed by Petitioner, Teresa Buchanan.)

Joseph said...

Do the parties tend to grant blanket consent for "big cases" to same degree as for "little cases"? If there is a notable disparity (ie blanket consent often not granted for big cases), I could see some reason for the rule.

Jim said...

Here's a radical thought -- unless all the colors of the rainbow already are spoken for, why not require *different* colors for amicus briefs in support of the petitioner or respondent?

Michael C. Dorf said...

To Joseph: I haven't made a careful study of the matter, but Josh Blackman, who agrees with and extends my proposal to lower courts, thinks it's mostly about the experience level of the attorneys. Repeat players (who will tend to be counsel in big cases and small cases for that matter) grant blanket consent. https://reason.com/2019/10/21/all-courts-should-abolish-the-need-for-amici-to-seek-leave-of-the-parties/

To Jim: Yes, shades of green does seem like asking for trouble!

CEP said...

A somewhat abstract tangent:

Perhaps the Court — or its printers in the basement (if they haven't been outsourced yet) — should identify the Pantone color or RGB/CMYK coding that is the "middle" of the desired range for each brief cover color...

... and reconsider the contrast of black type on each of them, especially the dark green and dark red...

... becomes although we're not in "a picture is worth a thousand words" territory here, we're disturbingly close — especially since there is established technical vocabulary that would simultaneously reduce the work of the Clerk's office and eschew obfuscation.

Joseph said...

Thank you. That was the only possible gatekeeping effect I could see the rule having. And after all other requirements, like proper color, seem onerous enough to keep out wayward briefs.

Unknown said...

I'm not sure why the fact that the Supreme Court has discretion to hear cases (which is what differentiates it from a court of error), should have any effect on the requirement of parties' consent. The parties are bringing the case and they presumably have a right to control the record and the briefs. Why does the fact that the Justices have decided their case is interesting or important for some reason override their rights? Perhaps it makes sense for the Court to solicit briefs when parties have neglected or minimized an issue (such as standing), but why is the litigant before the supreme court required to have his case treated as a public forum for anybody with an opinion?

Joe said...

A key abortion case shows the level we have regarding color scheme ...

https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/18-1323.html

Unknown said...

An interesting post, as always.

The one useful function that requiring consent can serve is that parties can dissuade folks from filing completely duplicative briefs. I never deny consent to folks filing on the other side, but in several cases I’ve worked on, we’ve encouraged potential amici offering near identical takes to join forces on a single brief that the Justices may be more likely to read. That’s why I often don’t file a blanket consent. It’s the only way of knowing ahead of time who might be out there planning a duplicative effort.

And sometimes it’s useful to dissuade people who want to file on your side from making arguments that may actually but unintentionally undermine your chance of winning.