Judicial Attitudes Towards Amicus Briefs:

The posts about amicus briefs have gotten enough interest that I thought I’d add one more, before I close with two posts about oral argument. Again, this is from Mayer Brown’s Federal Appellate Practice treatise:

[A] nonparty that is not a government entity or official covered by Rule 29 of the Federal Rules of Appellate Procedure and cannot obtain the consent of the parties must seek leave of the court to file an amicus brief. Whether to grant a motion for leave to file is a decision that falls within the discretion of the court of appeals….

(a) Restrictive View

In a series of opinions, Judge Posner of the Seventh Circuit has taken a narrow view of the circumstances in which leave to file an amicus brief should be granted. Indeed, his attitude towards amicus filings has been described as one of outright “hostility” and even as a “crusade.”

While acknowledging that we are now “beyond the original meaning” of “amicus curiae,” and that “an adversary role of an amicus has become accepted,” Judge Posner is nevertheless insistent that there be “limits.” Those limits, according to his opinions, are that a motion for leave to file should ordinarily be granted only when (1) a party is not represented competently or not represented at all; (2) the amicus has an interest in some other case that may be affected by the decision in the case before the court; or (3) the amicus has unique information or a unique perspective that can provide assistance to the court beyond what the lawyers for the parties can provide.

The opinions offer a number of justifications for these limitations: (1) judges “have heavy caseloads” and so “need to minimize extraneous reading”; (2) amicus briefs may be used to “make an end run” around limitations on the length of party briefs; (3) amicus briefs “drive up the cost of litigation”; and (4) amicus briefs often reflect an effort to “inject interest group politics” into the judicial process. Judge Posner has applied the limitations without discrimination; in the most recent of his opinions, he denied a motion filed by the Speaker of the Illinois House of Representatives and the President of the Illinois Senate.

These opinions do not reflect the views of Judge Posner alone. Although two of the three were “in chambers” opinions in which Judge Posner spoke only for himself, one of the opinions was a panel opinion joined by two other members of the Seventh Circuit. And that opinion states that the limitations described above reflect the “policy of this court.”

It bears mention, moreover, that Judge Posner is one of the most respected and influential judges in the United States. For that reason, his views on amicus briefs, as on any issue, will inevitably be taken seriously by other courts. The Supreme Court of Illinois, for example, has stated that the limitations described in Judge Posner’s opinions will be treated as a “useful guide” in ruling on motions for leave to file in that court. Following that “guide,” the court ruled that the Chamber of Commerce of the United States — one of the most frequent filers of amicus briefs — would not be permitted to file a brief in that case.

Nevertheless, the significance of Judge Posner’s views should not be overstated, even within the Seventh Circuit. Because a motion for leave to file an amicus brief rarely results in the issuance of an opinion, it is difficult to gauge how consistently Judge Posner’s “policy” is followed. Still, practitioners filing a motion for leave to file in the Seventh Circuit would be well advised to include an argument that the proposed brief satisfies the standards set forth in Judge Posner’s opinions. Practitioners should be particularly careful to ensure that their proposed amicus filings are not perceived as “me too” briefs, which merely repeat the arguments of the party or other amici. That is sound practice in any circuit, but especially in the Seventh.

(b) Permissive View

Outside the geographical boundaries of the Seventh Circuit, Judge Posner’s position on amicus briefs has few defenders. Leading appellate practitioners have been highly critical. One has argued that Judge Posner’s “reflexively negative view” towards amicus briefs “makes no sense” given “the simple fact that many appellate decisions have profound effects that far exceed the boundaries of the dispute between the parties.” And within the federal courts of appeals, Judge Posner’s position clearly reflects the “minority view.” Although there have been isolated instances of courts outside the Seventh Circuit denying motions for leave to file for reasons other than untimeliness, the “general practice in the federal courts of appeals is to grant leave to file an amicus brief in most situations.”

The majority view is comprehensively set forth in an opinion by another of the country’s most respected judges: then-Judge Alito of the Third Circuit. His opinion rejects the “restrictive standards” reflected in Judge Posner’s opinions, on the grounds, among others, that they may “convey an unfortunate message about the openness of the court” and “create at least the perception of viewpoint discrimination.” Judge Alito’s opinion also responds to a number of the specific points made by Judge Posner. The opinion explains that, even when a party is well represented, an amicus may provide “important assistance to the court” — for example, by collecting relevant “‘background or fact[s],’“ providing “‘expertise not possessed by any party,’“ explaining “‘the impact a potential holding might have’“ on a particular group, or arguing “‘points deemed too far-reaching’“ by a party. The opinion also points out that requiring a prospective amicus to undertake the “distasteful task” of demonstrating the incompetence of the attorney for the party would likely “discourage amici” in cases where the party’s brief is “less than ideal” and an amicus submission would be “valuable to the court.” Finally, the opinion notes that a restrictive policy is “an unpromising strategy for lightening a court’s work load,” because the time required for “skeptical scrutiny” of proposed amicus briefs might equal or exceed the time required for studying the briefs if leave were granted, and “unhelpful amicus briefs” likely claim only “a very small part” of a court’s time in any event.

Judge Alito’s approach is thus diametrically opposed to Judge Posner’s. While the latter effectively establishes a presumption that motions for leave to file an amicus brief should be denied, the former effectively establishes a presumption that they should be granted. As Judge Alito’s opinion puts it, courts should grant leave to file “unless it is obvious that the proposed briefs do not meet Rule 29’s criteria as broadly interpreted” — i.e., unless it is obvious that the movants do not meet the broadly interpreted requirements of “(a) an adequate interest, (b) desirability, and (c) relevance.” Judge Alito’s opinion notes, correctly, that this approach “is consistent with the predominant practice in the courts of appeals.”

Thus, in most circuits, a motion for leave to file an amicus brief will ordinarily be granted as long as the motion and brief (1) comply with the technical requirements of Rule 29 and any applicable local rules and (2) make a plausible case that the brief performs one of the traditional functions of an amicus submission. In most circuits, however, a motion ordinarily will not be required, because, as Judge Alito’s opinion observes, the parties recognize that “leave to file would be granted [even] if consent were withheld,” and thus it is typical for consent to be “freely given.” Practitioners may find that consent is less freely given in the Seventh Circuit, because, under that court’s restrictive standards, it is far less clear that leave to file would be granted if consent were withheld.

This practice is consistent with our experience. Counsel who regularly practice before courts of appeals (at least other than the Seventh Circuit) recognize that it is generally pointless to withhold consent to the filing of an amicus brief, even if it is being proffered by a hostile amicus. The court of appeals is likely to grant the motion, and recalcitrant counsel gains nothing but judicial annoyance from forcing the amicus to file a formal motion. It may sometimes be awkward to explain to a client why giving this consent is not only appropriate as a matter of “professional courtesy” but also as a matter of tactical wisdom; counsel representing a party should be prepared to provide such an explanation. If succeeding on an appeal depends on keeping the court of appeals from hearing from an amicus curiae, counsel and the client may have real problems.