I have occasionally criticized judges and Justices who use their official positions to try to influence the legislative process. In this post I want to criticize the mirror image: Legislators who sign on to “congressional briefs” in the Supreme Court, such as the one David Kopel links to below, designed to influence the outcome of cases.
Amicus briefs written on behalf of sitting legislators strike me as inappropriate. Of course, legislators can influence the judicial process in many ways. They write the legislation that the courts interpret; they control the rules that govern judicial hearings; they can control much of the Court’s docket; and they even control how many Justices are on the Supreme Court. Further, legislators take an oath to uphold the Constitution, and they have an independent (albeit sporadically exercised) duty to ensure that legislation they enact passes constitutional muster.
At the same time, the filing of briefs to try to influence individual cases seems to me to enter inappropriately into the core of the judicial process. Deciding cases isn’t Congress’s job, and it’s unseemly and inappropriate for legislators to step in and try to influence how the Justices exercise “the judicial Power of the United States” that the Constitution vests in the Supreme Court. It doesn’t help that the Congressional briefs tend to be substantively weak. In general, they just express whatever view is politically popular among that legislator’s constituency at the time the brief is filed. But in most cases, they add nothing helpful to the judicial process. (I’m not saying that’s true with Clement’s brief, parts of which strike me as what a Bush DOJ might have filed if it still had been around. Just that it’s true with most of them.)
To be sure, the courts can just ignore the briefs, just like legislators can ignore judicial opinions designed to influence legislation. Certainly there are bigger problems in the world. Still, if it were up to me legislators would stop filing these briefs out of respect for the separation of powers.
Gabriel McCall says:
To the extent that the courts are interested in congressional intent in determining how to interpret a law, it seems to me that an explicit statement from congress regarding their intent would not be entirely useless. And to the extent that the courts are not interested in congressional intent, they can ignore the brief.
Perhaps there’s a fine line between “attempting to influence” and “providing information believed to be relevant”, but in the absence of some sort of pressure on the court I don’t see how filing a brief can be any sort of separation of powers violation. A brief has no force or effect beyond what the court chooses to give it.
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November 23, 2009, 5:36 pmShelbyC says:
It strikes me as less inappropriate for Congress to submit briefs to the court than for judges to opine on what congress should. do. When judges make such statements, they are necessarily entering the political process, because they are not just making suggestions directly to the congresscritters, they are making them to the voters as well. (Of course, making private suggestions would probably also be inappropriate...)
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November 23, 2009, 5:39 pmmatt d says:
I dunno, seems to me if judges are going to go around claiming support from an “emerging (inter)national consensus” for things that barely break 50% approval, it makes a lot of sense for the elected branches to try and nudge the judges’ perceptions of public opinion.
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November 23, 2009, 5:40 pmPerseus says:
Anyone know the history of the practice of legislators filing briefs? Is it a relatively new phenomenon?
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November 23, 2009, 5:44 pmAJK says:
But in a case, like this one, that revolves around interpreting congressional intent, isn’t it only fitting that Congress offer up its opinion?
(Of course, the notion that the current Congress has a special insight into the intentions of their predecessors 150 years ago is a bit of a fiction, but no more than the notion that the Supreme Court has the same insight.)
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November 23, 2009, 5:47 pmAllan Walstad says:
Interesting post, and worth thinking about. Of course, you can’t stop pols from posturing. It might make sense (if pols really were interested in obeying the Constitution) to go in the opposite direction, to have something like the Congressional Budget Office except on the legal side, to advise in advance regarding the constitutionality of proposed legislation. But, that would just be gamed.
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November 23, 2009, 5:51 pmJiffy says:
Isn’t it equally inappropriate and a violation of respect for the separation of powers for the executive to file amicus briefs?
I don’t much see the problem, since, as you say, either branch can ignore the other’s position. I’m just glad they are doing it in a manner that is transparent.
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November 23, 2009, 5:52 pmOrin Kerr says:
This is true if “a bit of” means “100% obviously.”
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November 23, 2009, 5:53 pmOrin Kerr says:
Why?
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November 23, 2009, 5:54 pmAllan Walstad says:
They darn well ought to seek such insight. They can read history. They can consult legal scholars and historians. They have a responsibility not to willfully or negligently pervert the intentions of the framers, where those intentions can be clearly discerned in history and have a firm basis in the text.
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November 23, 2009, 5:58 pmCrunchy Frog says:
That’s a feature, not a bug. If congressional briefs were well-written, then someone might actually pay attention to them.
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November 23, 2009, 6:02 pmDavid Welker says:
I disagree with you on both counts.
It is fine if the members of the judiciary express their opinion about legislation. In fact, they are in a special position to do so, since they have a better understanding of how the law actually impacts the world in concrete cases than most citizens. Obviously, if they were to assert that the exercise of Congressional power one way or another would influence their judging in a particular case, that would be highly improper. That is, if they tried to leverage their judicial power into legislative power, that would be problematic. But there is nothing wrong with expressing an opinion. Judges are citizens too.
It is fine if members of Congress file briefs with the judiciary. I don’t see why members of Congress should be situated in an inferior position relative to the ACLU or the Institute for Justice or the NRA in this regard. On the other hand, I don’t think Courts should give any special consideration of briefs filed by members of Congress, but instead should evaluate them like any other brief based solely on the quality of the legal argument. If members of Congress submitted briefs threatening to change the jurisdiction of the courts if a case did not come out a certain way, that would be clearly improper. But members of Congress have a right to make arguments about the meaning of the Constitution, just as the ACLU or NRA does.
Both members of Congress and Judges are, in addition to being office holders, ordinary citizens. As long their interactions with the other branches are done in that capacity, I do not perceive any separation of powers problems when they choose to act as ordinary citizens. Instead, separation of powers problems occur when they try to use the powers of their office to encroach on the other branches.
I think the best argument that Orin could come up with be some sort of slippery slope argument. While I do not think such arguments should be discarded altogether, I believe they should be disfavored. I don’t see the slippery slope here.
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November 23, 2009, 6:03 pmSandy MacHoots says:
Uh, because the Executive is also a separate branch of government, and yet it routinely interfere in the deliberations of the courts even when it isn’t a party.
It’s not obvious to me why a congressional amicus brief would be worse than an executive amicus brief. Do you have similar objections to executive amicus briefs?
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November 23, 2009, 6:20 pmtroll_dc2 says:
Do you have a problem when the Court INVITES the Executive Branch to submit its views?
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November 23, 2009, 6:30 pmDavid Nieporent says:
But Orin, who can speak for himself, has specifically criticized justices for doing the latter — for lobbying Congress in their judicial opinions, not by writing a letter to their Representative.
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November 23, 2009, 6:30 pmOrin Kerr says:
Sandy MacHoots writes:
I gather the word “uh” is supposed to suggest that I am missing something obvious. On the chance that you are more deeply learned in the theory of the separation of powers than I am, I apologize for my relative amatuerism.
But I do see them as quite different. The role of the executive has traditionally been understood as including the duty to represent government interests in litigation: The power to represent the interests of federal law is part of fulfilling “[t]he executive Power.” That’s why there is a Solicitor General’s Office in the executive branch charged with defending federal law and federal interests before the courts. So when DOJ files a brief, it is not the personal brief of the SG, but rather an institutional brief representing the executive branch’s duty to represent the government’s interests in litigation.
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November 23, 2009, 6:30 pmAllan says:
Sandy,
I think it would be appropriate for the exectutive branch to comment.
That is not to say that it inappropriate for DOJ to comment, for, certainly, the US government should have a voice and it is DOJ’s job to put forward the position of its client. The problem is that DOJ will, for the most part, only put forward the position of the executive branch and not necessarilly take into consideration the position of the legislative branch. That may be an issue.
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November 23, 2009, 6:30 pmDavid Nieporent says:
Two problems:
1) As several commenters point out, congress has no special insight into what some other congress “intended.”
2) These briefs are not an “explicit statement from Congress”; they’re an explicit statement from several (or several dozen, sometimes) members of Congress. A subset of Congress can’t speak for Congress.
But, indeed, what does it mean to talk about what “Congress intended”? Congress passes one law, but it has 535 possible intents.
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November 23, 2009, 6:36 pmSoronel Haetir says:
Orin,
Would you see the situation differently if Congress were to file an official brief that it had adopted through resolution? Would it matter if only one house adopted it?
I would think that situation would at least be a different case from even the brief filed in Heller where a majority of members put their name on the document even though it was not an official act of the legislature. Most of the briefs of this nature I’ve seen involved only a handful of members, such as those filed in election related cases.
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November 23, 2009, 6:45 pmSteve says:
The amicus process exists so that anyone with an interest in the litigation can attempt to “influence” the outcome in a completely above-board way. I don’t think it’s inappropriate at all for anyone who wants to, including legislators, to make use of it.
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November 23, 2009, 6:46 pmRealistLiberal says:
I wonder what Bingham would think of the appropriateness of Congress filing amicus briefs. Does anyone have any insight into that?
(Sorry, couldn’t resist.)
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November 23, 2009, 6:47 pmChris Newman says:
This is an interesting question. In a similar vein, back in 1999 Judge Kozinski wrote a trilogy of opinions railing against courts that take it upon themselves to lecture either the legislative or executive branches on the proper ways to exercise their authority. My understanding of his overall position was that whatever personal opinions individual judges might express in concurrences or dissents, it is inappropriate for the court speaking as a court (i.e., in the course of a binding majority opinion) to lecture another branch in a non binding fashion–i.e, when the court is not actually holding as a matter of law that the criticized/desired conduct in question is unlawful/legally required–on what it ought to do. The last of the three opinions in question (which contains cites to the first two) is U.S. v. Burdeau, 180 F.3d 1091 (9th Cir. 1999).
If the distinction Judge K makes is valid, then I suppose one might draw a similar line between legislators signing an amicus brief purporting to do no more than express their own personal views, and, say, a congressional resolution trying to express Congress’s view as to how they think a given case should be decided. Of course, we might just be dealing in degrees here. I can see taking the position that it is “unseemly and inappropriate” even in an individual dissent to express opinions on public policy that go beyond the scope of the correct resolution of the legal issues presented. But on the other hand, one might argue that the principle of separation of powers is respected so long as no branch purports to exercise institutional authority over the others that it doesn’t have, and that this doesn’t mean individual legislators, executive officers, or judges should never seek to supplement formal checks and balances with non-binding rhetorical ones.
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November 23, 2009, 6:48 pmDilan Esper says:
I agree with all the criticisms of original intent. Nonetheless, a narrow (AND OCCASIONAL) brief from one of the authors of a statute which is the subject of a statutory interpretation case saying “here’s the deal we made” or “here’s why that language was put in” or “we really weren’t thinking of X” or “we really weren’t trying to do X” seems to me to be unobjectionable– the Court doesn’t have to follow it, but it’s not inconceivable that such a brief could shed some light on what Congress was actually doing.
But it seems to me that Professor Kerr’s general objection is correct, although I really have the same objection to lots of amicus briefs. Congress is just another interest group filing duplicative and redundant briefs with the Court, but really, what’s needed is stricter rules (and stricter enforcement of the rules) with respect to all amicus briefs.
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November 23, 2009, 6:55 pmCrunchy Frog says:
Winner.
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November 23, 2009, 6:58 pmJiffy says:
That may be the theory, but there are certainly many cases in which the interests of the executive and legislative branches diverge, and ultimately the SG and those up the chain of command report to the President. It’s hard to see the harm to separation of powers when legislators express their own view of the “government’s interests” if they disagree with the view of the SG. On the contrary, if rules, tradition, or notions of propriety required legislators to just accept whatever view of the legislature’s interests the executive put foward, wouldn’t that undermine separation of powers?
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November 23, 2009, 7:16 pmChrisTS says:
Sure. But if he catches the fish, we should take the prize back as punishment.
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November 23, 2009, 7:17 pmCrazyTrain says:
Orin: At least you are consistent, but you are consistently wrong on this one. I just don’t see the problem with legislators letting the Court know what its views of the Constitution (or other laws) are. And in the same vein, I have no problem with courts letting legislators know when they feel that legislation is not working or not working as the court believes the legislators intended. I think you hit the nail on the head with the below quote, and that resolves any concerns I would otherwise have about the practice.
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November 23, 2009, 7:23 pmSandy MacHoots says:
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November 23, 2009, 7:25 pmyankee says:
This argument seems circular. As I read you, you’re saying, “it violates the separation of powers because it’s unseemly for members of Congress to express their opinion to the Court, and it’s unseemly for members of Congress to express their opinion to the Court because it violates the separation of powers.”
To me, it seems that the problem with judges using their official capacity to “lobby” Congress is that judges are supposed to be neutral arbiters of the law, and using their position to lobby for legislation compromises their neutrality. It’s a matter of judicial ethics and neutrality, not of separation of powers.
On the other hand, members of Congress writing amicus briefs doesn’t do anything to compromise their positions as legislators. Nor does it compromise the impartiality of the justice system, since the Justices are extremely unlikely to give undue weight to a brief merely because it was signed by members of Congress.
There would be a problem if the briefs were an implicit threat: vote our way or we’ll restrict your jurisdiction/cut off your funding/impeach you. But Congressional amicus briefs aren’t being used as threats, and such threats would be problematic whether or not they were expressed in amicus briefs.
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November 23, 2009, 7:51 pmOren says:
Somehow, I trust the Court not to think so terribly highly of Congress that they let legislators’ briefs unduly influence the case.
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November 23, 2009, 8:01 pmMark Field says:
Two sources:
1. The Constitutional text requires that the Executive “take care that the laws be faithfully executed”. That’s done by enforcing them in court. Thus, the natural source for representing the interests of federal law is the Executive.
2. Tradition. That’s how it worked in the British government, and how it’s worked here since 1789. The federal government has, from day 1, presented the “government” position in court, while Congress (AFAIK) never has (in the sense of a brief adopted by both Houses).
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November 23, 2009, 8:02 pmjcm says:
The Congress is the author of the law so due process requires that the author presents his defense of the law. Its a common feature in European law. I now that european law its not welcomed here but due process is american law
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November 23, 2009, 8:07 pmShelbyC says:
Another illustration of the problems of congressional intent. Is Congress going to submit a brief to me, when I’m trying to follow the law, before the matter winds up in court? If congress wants to write about what its intent was, they should do so in the statute (or amendment)
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November 23, 2009, 8:09 pmNickM says:
It only seems like Robert Byrd was around then.
Nick
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November 23, 2009, 8:20 pmchug says:
The “separation of powers” at the federal level is of much less concern to me than the routine centralization of power in those three branches AND the mutual reinforcing of that centralization of power by those three branches.
Of much greater concern to me is the slowly but surely neutering of the 10th Amendment and the concurrent centralization of power by the central government and those three branches.
At this point, worrying about the “separation of powers” at the federal level is somewhat like worrying whether you are being robbed by one armed and dangerous crook as opposed to three armed and dangerous crooks.
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November 23, 2009, 8:27 pmAnonymous Cavalier says:
Orin: You start by saying that legislators shouldn’t try to influence the judicial process by filing briefs, because they should stick to using the means the Constitution gives them for influencing judges. But you don’t really explain at all why the executive shouldn’t be so constrained; the President’s power to sign and veto laws means he shares in all the structural controls possessed by Congress. What’s more, he has nominating power, and control over the means of executing a court’s judgments. So why not apply the same logic to the executive, and say that the President ought to stick to the tools the Constitution gives him?
Well, you say, because that’s “different.” It’s different because “traditionally” the executive represents the government’s interest before the court. Of course, the accuracy of that statement depends on how you interpret the word “government”; in a dispute between the President and Congress, we know the SG represents only the President’s interest. Congress is no less part of our government. Is it less inappropriate in that circumstance for Members of Congress to file briefs expressing their view? Does it help if they express their views in institutional terms (i.e., “Amicus Curiae the 4th Congressional District of California” or something)?
And then there’s the other question that naturally follows from your argument: what other legal materials a court might consider are off limits to Congressmen? Is it inappropriate for Members of Congress to write law review articles expressing their views about what the law requires and explicitly urging courts to interpret laws in particular ways? What about books? Courts cite books sometimes. What about committee reports, or floor speeches? Newspaper editorials? My suspicion is that you will say these other avenues are not off-limits.
(And what about candidates for congressional office? Can they file briefs? Or does the separation of powers bind them too?)
All this leaves us with a very strange rule. The separation of powers are violated only by members of one branch (and not the other) trying to persuade judges of their views, and only if they do it by brief writing.
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November 23, 2009, 8:31 pmCrazyTrain says:
Due process to what/whom? The US Constitution requires that life, liberty and property not be deprived from any person by the state/federal government without due process. Are you saying that the legislature’s life, liberty or property is possibly being deprived when a court construes a statute/constitution? If so, that is rather silly. If that is not what you are saying, then I just don’t get where you are going with this “due process requires the legislature defends its laws” argument. . . .
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November 23, 2009, 8:40 pmDjDiverDan says:
As a general matter, that is perfectly true. However, when the critical issue raised in the case involves the meaning of the Constitution, especially a Constitutional question which will determine the scope of the power of the Legislative Branch to act (e.g., what rights, if any, under Section 1 of the 14th Amendment does Congress have the power to enforce “by appropriate legislation” under Section 5 of the 14th Amendment), then I see nothing at all inappropriate in members of the Legislative Branch, a branch which is coequal with the Judiciary, providing the Court its own view of the meaning of the Constitution through an Amicus Brief. Frankly, since this is a public filing, freely available to whoever wants to read it, this is probably the most transparent process for any members of the Legislative Branch to express their views on the meaning of the Constitution (and, as an aside, on the interpretive methodology they rely upon in interpreting the Constitution) we could hope for. Not only do I not think its “unseemly”, I appreciate the input of whatever Senators and Representatives choose to say about how they interpret the Constitution, even if I should disagree with their interpretation or methodology. At least with Senators and Representatives who I disagree with on Constitutional Issues, I have a remedy at the Ballot Box.
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November 23, 2009, 8:48 pmDave N. says:
I don’t often agree with David Welker, but I do here.
I agree that members of Congress vote for or against legislation for a variety of reasons and a member’s rationale for a particular vote is largely irrelevant.
On the other hand, I would think the Supreme Court might have been interested in the thoughts of Senators John McCain and Russ Feingold when it was deciding McConnell v. Federal Election Comm’n, to use one obvious example.
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November 23, 2009, 9:43 pmSandy MacHoots says:
Okay, the first point makes sense, but it’s not clear to me that a brief advocating how the law should be interpreted involves “executing” the laws. Sounds to me more like influencing them,
On the second point, British tradition doesn’t seem applicable, because there is no separation of powers in the British system. As for our tradition, when did the Justice Department first start filing amicus briefs in cases? If it was 1793, that’s pretty good evidence in support of the argument. If it was much later, I’m less impressed.
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November 23, 2009, 9:47 pmSandy MacHoots says:
On a quick (nonspecialist) check of Westlaw, I found only one case before 1900 in which the Attorney General or the S.G. acted as amicus in a case: Beatty’s Adm’rs v. Burnes’ Adm’rs, 8 Cranch 98 (1814). But that case actually involved the question whether a piece of real estate belonged to the federal government.
Interestingly, In 1821 Senator Henry Clay appeared as amicus before the Supreme Court in a constitutional case, though he did not purport to represent Congress: Green v. Biddle, 21 U.S. 1 (1823).
Other cites would be appreciated, but on the surface the tradition argument seems a little weak.
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November 23, 2009, 10:12 pmHMajor says:
Orin,
Does it make any difference to your analysis that members of Congress have a direct interest in the outcome of McDonald as members of Congress?
Under City of Boerne v. Flores, Congress’s power to enforce the 14th Amendment under its Section 5 power is constrained to means that are congruent and proportional to enforcing rights that the Court finds to be incorporated by Section 1 of the 14th Amendment. If the Court holds that Section 1 protects gun rights, then Congress will have Section 5 powers to enforce and protect gun rights. If the Court holds that Section 1 does not protect gun rights, then, under City of Boerne, Congress will not have Section 5 power to enforce and protect gun rights.
To the extent that Congressmen, as Congressmen, have a direct interest in expanding their power if the Court holds that Section 1 protects gun rights, do you object to them seeking to protect that interest as friends of the Court? The Clement brief mentions, but does not rely on, this rationale.
After all, if the issue is respect for other branches’ interpretations of the Constitution, then arguably the Court started the fight in Boerne by holding that Congress cannot adopt a more expansive view of Section 1 than the Court adopts.
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November 23, 2009, 10:20 pmMark Field says:
Agreed, but there’s no way to “execute” a law without first taking a position regarding what it means.
Agreed on the separation of powers issue, but remember that all the Founders had in mind a mental image of what they expected the Executive to do (the grant of power itself being notoriously vague). That included what governors did in the colonies and what the King did in England. While they consciously restricted a good many of those powers, the remaining practices influenced their view of how the new American executive would act.
I wouldn’t expect to find “amicus” briefs by the US in that era. The practice in those days was for the AG to be present in Court during Supreme Court sessions (they sometimes only last a couple of weeks). You can see in the reports that the AG would stand up and give his view on federal law even in private cases. See, e.g., Wilson v. Daniel, 3 U.S. 401 (1798) (that happened to be the case I opened the book to, but it was a fairly common feature of the cases).
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November 24, 2009, 12:00 amVisitor Again says:
The filing of amicus briefs by members of Congress actually shows respect for the separation of powers. The members of Congress filing such a brief are recognizing that the decision in the case belongs to the Court.
I see nothing at all wrong in members of Congress seeking to influence the Court’s disposition of a case provided that the effort to influence involves nothing beyond the power of persuasion by argument. Threats or other forms of coercion are a different matter.
In fact, members of Congress often have a peculiar interest in a case that otherwise might be unrepresented or inadequately presented before the Court. In that event, surely Coangressional amicus participation is not only proper but also highly desirable.
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November 24, 2009, 12:13 amOrin Kerr says:
A number of comments rather misunderstand my argument, and unfortunately I don’t have my usual time to respond to all of them in depth. Just to respond to Sandy Machoots, though, let me take two responses Sandy makes:
I was acting in good faith, as I tend to be: I am sorry if your experience is that I give “flip non-answers.” I do aim to improve, I hope with your help.
No, that’s not correct. My argument is not that it is correct because it has been done this way, but rather it is correct because it reflects the historical understanding of the separation of powers upon which the Constitution is based. The executive branch has traditionally been understood as a litigating branch that represents the institutional interests of the government. Do you disagree?
As for the argument that you’re not sure why “the legislature” doesn’t file a brief, beyond the reasons I mention, I think you’re overlooking the fact that the “congressional briefs” are not filed on behalf of the legislature: they are filed on behalf of individual legislators. The briefs do not claim to represent Congress as a whole, or the interests of the legislature: They only claim to represent the interests and views of the subset of legislators who decided to sign the brief.
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November 24, 2009, 12:55 amSara says:
Orin’s position sounds correct. There have ben cases where a legislative body is a party and in those cases they have their own counsel. But if these members want to file an amicus, they should do so as private citizens and not as legislators or officers.
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November 24, 2009, 7:41 amFederal Farmer says:
I’m kind of disappointed with this vague hand-grenade tossed at the brief. Very left-handed criticism couched as criticism of a policy in general.
Got any beefs with this particular brief? I rather enjoyed its assertion that 2A affects Congress’ War Powers. I don’t like to see the civic duty portion implied by the Amendment’s prefatory clause completely dismissed as seems popular these days.
There was a good brief in Heller from several military officers along those lines as well.
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November 24, 2009, 9:29 amRorie Spill Solberg says:
If anyone is interested in some analysis of these briefs, here is some citations:
Heberlig, Eric and Rorie L. Spill. 2000. “Congress at Court: Members of Congress as Amicus Curiae.” by Eric Heberlig and Rorie L. Spill. Southeastern Political Review Volume 28:1–24.
Spill Solberg, Rorie L. and Eric S. Heberlig. 2005. “Communicating to the Courts and Beyond: Why Members of Congress Participate as Amicus Curiae.” Legislative Studies Quarterly Vol 29:591–610.
“Congressional Polarization and Amici Participation.” Midwest Political Science Association Meeting. Chicago, IL. April 2–5, 2009
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November 24, 2009, 11:49 amJohn Moore says:
I agree. They should wear boxers, not briefs.
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November 24, 2009, 11:52 amCJColucci says:
How can you have a separation-of-powers issue that does not involve the actual or potential exercise of power? This is just people — judges, legislators, government lawyers kibitizing in cases where the government isn’t a party — talking. Maybe some folks think it’s “unseemly.” So is wearing a tuxedo to a morning wedding, but there is no accounting for taste.
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November 24, 2009, 12:06 pmSeparation of Powers | Snowflakes in Hell says:
[...] Kerr over at the Volokh Conspiracy takes a negative view of briefs filed at the Supreme Court by legislators: Amicus briefs written on behalf of sitting legislators strike me as inappropriate. Of course, [...]
Sandy MacHoots says:
No, I have no basis on which to disagree. I was asking questions because the answers weren’t intuitively obvious to a non-specialist and I was curious. One of my favorite things about this blog is that I learn interesting stuff I didn’t know.
Like this. Thanks, Mark. I had no idea that was the practice, but it makes the argument from tradition much more powerful.
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November 24, 2009, 6:52 pmLarry Fafarman says:
It appears that under Supreme Court Rule 37, a member of Congress is not even eligible to file an amicus brief without either (1) written consent of all the parties or (2) leave from the Court. Subparts 3 and 4 of Rule 37 say,
Rule 29 of the Federal Rules of Appellate Procedure says,
The Federal Rules of Civil Procedure, which governs federal district courts, has no rule for amicus briefs, and federal district courts generally follow FRAP Rule 29.
IMO a member of Congress does not satisfy the above descriptions of government officials who need no approval to file amicus briefs. Under Supreme Court Rule 37 — 3(b) above, it is possible to have an amicus brief read by the Supreme Court even if leave to file is not granted, because the motion for leave to file is attached to the brief sought to be filed, so a party’s objection to the filing of an amicus brief might actually increase the probability that the brief will be read by the court.
I suspect that litigants generally have a gentlemen’s agreement to not oppose the filing of any amicus briefs — opposing an amicus brief would invite retaliation and result in chaos.
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November 24, 2009, 9:44 pmThe Volokh Conspiracy » Blog Archive » McDonald amicus briefs: Academics, and Congress redux says:
[...] another brief...Orin’s Monday post, “Against Congressional Briefs,” argues that, out of respect for separation of powers, Congresspeople should not file briefs [...]