Believe it or not, not every judge likes to read! Not only that, some judges despise duplicative, wasteful use of the privilege of Amicus Curae. These judges are not cranks: They happen to be led by Richard Posner and the 7th Circuit Court of Appeals. They argue that parties often abuse the Amicus privilege, which leads judges to discount Amicus briefs which defeats the whole purpose of having Amici to begin with. Got it? Or, as Professor Posner puts it:
Judge Richard Posner at Harvard University. He's not a fan of the Amicus brief.
- We court of appeals judges have heavy caseloads requiring us to read thousands of pages of briefs annually, and we wish to minimize extraneous reading. It would not be responsible for us to permit the filing of a brief and then not read it (or at least glance at it, or require our law clerks to read it), at least when permission is granted before the brief is written, and so reliance on our reading it invited. Therefore amicus curiae briefs can be a real burden on the court system. In addition, the filing of an amicus brief imposes a burden of study and the preparation of a possible response on the parties.
- Amicus curiae briefs, which we believe though without having proof are more often than not sponsored or encouraged by one or more of the parties in the cases in which they are sought to be filed, may be intended to circumvent the page limitations on the parties’ briefs, to the prejudice of any party who does not have an amicus ally. The lawyer for one of the would-be amici curiae in this case admits that he was paid by one of the appellants for his preparation of the amicus curiae brief. And that appellant comes close to admitting that its support of the requests to file amicus briefs is a response to our having denied the appellant’s motion to file an oversized brief.
- Amicus curiae briefs are often attempts to inject interest-group politics into the federal appellate process by flaunting the interest of a trade association or other interest group in the outcome of the appeal.
Nat’l Org. for Women, Inc. v. Scheidler, 223 F.3d 615, 616-17 (7th Cir. 2000)
And so in the 7th Circuit:
The policy of this court is, therefore, not to grant rote permission to file an amicus curiae brief; never to grant permission to file an amicus curiae brief that essentially merely duplicates the brief of one of the parties (for a particularly egregious example of such an amicus brief, see United States v. Gotti, 755 F.Supp. 1157 (E.D.N.Y.1991)); to grant permission to file an amicus brief only when (1) a party is not adequately represented (usually, is not represented at all); or (2) when the would-be amicus has a direct interest in another case, and the case in which he seeks permission to file an amicus curiae brief may, by operation of stare decisis or res judicata, materially affect that interest; or (3) when the amicus has a unique perspective, or information, that can assist the court of appeals beyond what the parties are able to do. Ryan v. CFTC, supra, and cases cited there; see also United States v. Boeing Co., 73 F.Supp.2d 897, 900 (S.D.Ohio 1999). The first ground is not available to these requesters; the appellant’s argument that no one can adequately represent it within the page limits permitted by this court is, of course, a reason against granting the request-it is an end run around our order denying permission to file an oversized brief. The second ground is illustrated by the two amicus curiae briefs that the motions judge did allow to be filed on behalf of the appellants, for both of those amici curiae are organizations faced with the same kind of civil RICO claims that formed the basis of the judgment against the appellants. Finally, none of the rejected briefs presents considerations of fact, law, or policy overlooked by the appellants, who have filed briefs totaling 104 pages. So ground (3) is unavailable as well.
Nat’l Org. for Women, Inc. v. Scheidler, 223 F.3d 615, 617 (7th Cir. 2000)
But his Circuit is pretty much on its own in taking such a draconian view of the Amicus brief. When the issue was raised before 3rd Circuit Judge (now Justice) Samuel Alito, he laid in to Posner’s position pretty hard:
Official 2007 portrait of U.S. Supreme Court Associate Justice Samuel Alito. He doesn't see the harm in liberally granting non-parties permission to enter Amici briefs.
The appellants argue that the amici do not satisfy the standards for filing a brief as amici. Among other things, the appellants contend that an amicus must be “ ‘an impartial individual’ ” and not a person who is “partial to the outcome” or who has “a pecuniary interest in the outcome.” Opposition to Motion for Leave to File Amicus Brief (“Opp.”) at 2–4 (quoting Leigh v. Engle, 535 F.Supp. 418, 420 (N.D.Ill.1982)). The appellants also argue that leave to file an amicus brief should not be granted unless the party to be supported is either unrepresented or inadequately represented. Opp. at 5–6. In making these arguments, the appellants cite a small body of judicial opinions that look with disfavor on motions for leave to file amicus briefs. See, e.g., National Org. for Women, Inc. v. Scheidler, 223 F.3d 615 (7th Cir.2000); Ryan v. CFTC, 125 F.3d 1062 (7th Cir.1997) (single judge opinion); Liberty Lincoln Mercury, Inc. v. Ford Marketing Corp., 149 F.R.D. 65, 82 (D.N.J.1993); Yip v. Pagano, 606 F.Supp. 1566, 1568 (D.N.J.1985). The appellants argue that restrictive standards espoused in these opinions represent the views of “the judiciary” and are “settled law” “in this jurisdiction.” Opp. 3–4.
…
Those favoring the practice of restricting the filing of amicus briefs suggest that such briefs often merely duplicate the arguments of the parties and thus waste the court’s time, and I do not doubt that some amicus briefs make little if any contribution. However, a restrictive practice regarding motions for leave to file seems to be an unpromising strategy for lightening a court’s work load. For one thing, the time required for skeptical scrutiny of proposed amicus briefs may equal, if not exceed, the time that would have been needed to study the briefs at the merits stage if leave had been granted. In addition, because private amicus briefs are not submitted in the vast majority of court of appeals cases,2 and because poor quality briefs are usually easy to spot, unhelpful amicus briefs surely do not claim more than a very small part of a court’s time. For all these reasons, I think that our court would be well advised to grant motions for leave to file amicus briefs unless it is obvious that the proposed briefs do not meet Rule 29‘s criteria as broadly interpreted. I believe that this is consistent with the predominant practice in the courts of appeals. See Micael E. Tigar and Jane B. Tigar, FEDERAL APPEALS—JURISDICTION AND PRACTICE 181 (3d ed. 1999)(“Even when the other side refuses to consent to an amicus filing, most courts of appeals freely grant leave to file, provided the brief is timely and well-reasoned.”); Robert L. Stern, supra, at 307–08.
Neonatology Associates, P.A. v. C.I.R., 293 F.3d 128, 130 (3d Cir. 2002)
The question of whether Amici actually influence case outcomes is woefully understudied, like all good empirical legal questions. For instance, I remember one Yale student managed to find out that Amicus Curae briefs from certain organizations made the Supreme Court significantly more likely to grant certiorari, something both interesting and important. It would certainly make for interesting Note topic to decide which among Alito and Posner actually has it right.
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