ADVISORY COMMITTEE ON APPELLATE RULES (2024)
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ADVISORY COMMITTEE ON APPELLATE RULES
Hearing on Proposed Amendments to
Rules 29, 32, Appendix on Length Limits,
and Form 4
February 14, 2025
HEARING ON PROPOSED AMENDMENTS TO APPELLATE RULES
FEBRUARY 14, 2025
ORDER OF WITNESSES
Please note that all times are Eastern. Timing is approximate and subject to change. Each witness
will have ten minutes – five minutes for formal testimony and five minutes to answer questions
from committee members.
Time Slot
Name
Organization
Rule or
Form
Chair’s Welcome and Opening Remarks at 10:00 (ET)
1
10:05—10:15
Sai
Fiat Fiendum
Form 4
2
10:15—10:25
Prof. Judith Resnik
Yale Law School
Form 4
3
10:25—10:35
Avital Fried
Yale Law School
Form 4
4
10:35—10:45
Anna Selbrede
Yale Law School
Form 4
5
10:45—10:55
Julia Udell
Yale Law School
Form 4
6
10:55—11:05
Carter Phillips
U.S. Chamber Litigation Center
Rule 29
7
11:05—11:15
Alex Aronson
Court Accountability
Rule 29
8
11:15—11:25
Lisa Baird
DRI Center for Law & Public Policy
Amicus Committee
Rule 29
Break from 11:25 to 11:35 (ET) (estimated)
9
11:35—11:45
Thomas Berry
Cato Institute
Rule 29
10
11:45—11:55
Molly Cain
NAACP Legal Defense and Educational
Fund
Rule 29
11
11:55—12:05
Lawrence Ebner
Atlantic Legal Foundation
Rule 29
12
12:05—12:15
Doug Kantor
NACS Advancing Convenience & Fuel
Retailing
Rule 29
13
12:15—12:25
Dana Livingston
American Academy of Appellate Lawyers
Rule 29
14
12:25—12:35
Seth Lucas
The Heritage Foundation
Rule 29
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Chair and Reporter Information Items
February 14, 2025
Page 2
Organization
Rule or
Form
Time Slot
Name
15
12:35—12:45
Tyler Martinez
National Taxpayers Union Foundation
Rule 29
16
12:45—12:55
Sharon McGowan
Public Justice
Rule 29
17
12:55—1:05
Patrick Moran
NIFB Small Business Legal Center
Rule 29
Break from 1:05 to 1:35 (ET) (estimated)
18
1:35—1:45
Jaime Santos
Goodwin Proctor
Rule 29
19
1:45—1:55
Stephen Skardon
American Property Casualty Insurance
Association
Rule 29
20
1:55—2:05
Zack Smith
The Heritage Foundation
Rule 29
21
2:05—2:15
Gerson Smoger
Smoger & Associates
Rule 29
22
2:15—2:25
Tad Thomas
American Association for Justice
Rule 29
23
2:25—2:35
Larissa Whittingham
Retail Litigation Center
Rule 29
24
2:35—2:45
Kirsten Wolfford
American Council of Life Insurers
Rule 29
Final Questions & Closing Remarks at 2:45 (ET) (estimated)
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TAB 1
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No written testimony outline or comment
was submitted by the requested January 29, 2025
deadline.
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TABS 2-5
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January 28, 2025
Advisory Committee on Appellate Rules
Judicial Conference of the United States
Via electronic submission
Dear Committee Members:
We are law professors and students, and we submit this comment in support of the proposed
revision of Appellate Form 4, Affidavit Accompanying Motion for Permission to Appeal In Forma
Pauperis.1 As explained, “Revised Form 4 simplifies the existing Form 4, reducing the existing
form to two pages. It is designed not only to reduce the burden on individuals seeking IFP status
but also to provide the information that courts of appeals need and use, while omitting unnecessary
information.”2 We hope the Advisory Committee will approve the recommendation and forward
it to the Standing Committee.
Our views are informed by our research and that of many others. As is likely familiar,
Professor Andrew Hammond has studied the forms used for in forma pauperis (IFP) applications
in the federal district courts. In his article, Pleading Poverty in Federal Court, he documented the
lack of uniformity in the forms that district courts use when individuals apply, pursuant to 28
U.S.C. § 1915, to proceed without prepayment of fees.3
As studies by the federal courts have documented, court staff and judges report spending
considerable time on IFP applications. A 2005 survey of court staff reported that the respondents
described apportioning five percent of their time on IFP matters and about thirty percent on initial
merits screening in prisoner civil rights cases.4 The Federal Judicial Center in 2011 chronicled the
difficulties in assisting pro se litigants and the array of activities in district courts aiming to assist
litigants.5 By 2023, the judiciary dedicated $94 million to employ 471 clerks (termed “Pro se and
death penalty” staff), of whom most “receive, prepare, and process civil complaints filed against
the government by prisoners and other individuals without attorney representation.” 6
Additional research builds on data made available through Northwestern’s Systematic
Content Analysis of Litigation Events (SCALES), which coded 2016 and 2017 federal court
docket sheets. One essay (co-authored by some of us) is Lawyerless Litigants, Filing Fees,
Transaction Costs, and the Federal Courts: Learning from SCALES, which sought to learn about
the relationship between self-representation and requests to proceed IFP.7 In terms of outcomes of
requests for IFP status, about forty percent of the cases for which SCALES had data, courts granted
more than eighty percent of the IFP applications, whether filed by non-prisoners or prisoners.8 In
addition to the time spent on assisting and responding to such applications, legal questions have
arisen about the criteria for determining IFP eligibility. Thus, federal judges at the trial and
appellate levels have dealt with litigation over eligibility. Further, given the obligations for
Comment on Proposed Revision to Form 4, Federal Rules of Appellate Procedure January 28, 2025
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Page 6 of 251
prisoners granted IFP status to pay over time, court and prison staff time is also devoted to fulfilling
those requirements. In short, contemporary practices impose costs on litigants who need to compile
information, on judicial staff and judges who make decisions, and on institutions dealing with the
financial interactions. Lowering the challenges and the need to invest time by simplifying forms—
as is proposed for Rule 4 of the Appellate Rules—is an important step forward. The uniform,
simplified approach would lessen the burdens of the current practice.
The proposed revisions are also responsive to concerns that forms can be misleading and
confusing.9 In 2022, the White House Legal Aid Interagency Roundtable published a report on
“Access to Justice through Simplification.” The Roundtable collected feedback from more than
“70 state and local legal aid and advocacy organizations,” including the recommendation to
“simplify applications, forms, and notices.”10 Drawing on those materials, the Roundtable created
a “Simplification Roadmap,” highlighting best practices for simplification and noting that
“[b]ecause legal assistance is rare, a simplification approach is essential to both increase the
accessibility of the legal system and to reduce its costs.”11 The roadmap includes strategies to
“simplify government forms,” “eliminate unnecessary requirements” in forms or processes, and
“use plain language.”12 Researchers at “justice labs,” based at Stanford and Harvard Law Schools,
have also identified the impact of making forms accessible to people who are not lawyers so that
they can provide the information courts need.13
A body of case law also discusses such challenges. For example, Judge Rosenbaum on the
Eleventh Circuit identified two problems: first, that court forms may demand “too much” from
litigants, and second, that litigants may not understand the consequences of the answers to
questions “they are being asked.”14 Other judges, describing the communication challenges, have
responded by including in their opinions paragraphs summarizing the outcomes—a “plain
language summary”—to enable self-represented litigants to understand the import of decisions.15
The proposal to revise Form 4 fits within this agenda to “reduce the burden on individuals” while
providing relevant information to the court for IFP determinations.16
In addition to supporting the proposal, we have a a few modest revisions to offer in
furtherance of the goals for revision. To make it simple to see our suggestions, we set them forth
in bold below.
Question 1 currently states “What is your monthly take-home pay from work?” We
recommend: “What is your monthly take-home pay, if any, from work?”
Question 4 currently states “How much are your monthly costs for other necessary
expenses (such as food, medical care, childcare, and transportation)?” We recommend: “How
much are your monthly costs for other necessary expenses (such as food, medical care, childcare,
old-age or other dependents’ needs, and transportation)?”
Comment on Proposed Revision to Form 4, Federal Rules of Appellate Procedure January 28, 2025
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Question 8 currently states: “Do you receive SNAP (Supplemental Nutrition Assistance
Program), Medicaid, or SSI (Supplemental Security Income)? We suggest adding a short sentence
to explain that some states have different names for the same programs. In Connecticut, for
example, the name for Medicaid is HUSKY Health. 17 At the end of the question, we recommend
adding: “The names of these programs vary in some states.”
Our fourth suggestion addresses the placement of the sentence: “If there is anything else
that you think explains your inability to pay the filing fees, feel free to explain below.” Our concern
is that the sentence’s location after the paragraph on prisoners could lead some non-prisoners to
believe the comments are not addressed to them and they are not to add additional explanations.
To avoid that potential, we suggest rephrasing that sentence to read: “For all applicants, if there
is anything else that you think explains your inability to pay the filing fees, please feel free to
explain below. (Attach additional pages if necessary.).”
In sum, we hope the Advisory Committee will approve these recommendations for
submission to the Standing Committee. Doing so will, we also hope, be a model for clarifying and
simplifying the IFP process throughout the federal courts. Thank you for your consideration of
these comments. Some of us will testify on February 14, 2025, and we look forward to the
opportunity to discuss these suggestions and respond to questions.
Respectfully submitted,
Avital Fried,
Yale Law School ‘26
Myriam Gilles,
Paul R. Verkuil Chair in Public Law
Yeshiva University Cardozo School of Law
Andrew Hammond,
Associate Professor of Law, Indiana University Maurer School of Law
Alexander A. Reinert,
Max Freund Professor of Litigation & Advocacy
Yeshiva University Cardozo School of Law
Judith Resnik,
Arthur Liman Professor of Law, Yale Law School
Comment on Proposed Revision to Form 4, Federal Rules of Appellate Procedure January 28, 2025
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Tanina Rostain,
Agnes Williams Sesquicentennial Professor Justice Innovation, Georgetown Law
Anna Selbrede,
Yale Law School ‘26
Lauren Sudeall,
David Daniels Allen Distinguished Chair of Law, Vanderbilt Law School
Julia Udell,
Yale Law School ‘26
1
We provide our institutional affiliation for identification purposes only; we speak only for ourselves.
Memorandum from IFP Subcommittee to Advisory Committee on the Federal Rules of Appellate Procedure
(February
29,
2024),
https://www.uscourts.gov/sites/default/files/2024-0410_agenda_book_for_appellate_rules_meeting_final.pdf.
3
Andrew Hammond, Pleading Poverty in Federal Court, 128 YALE L.J. 1478 (2019).
4
NINTH CIR. JUD. COUNCIL TASK FORCE ON SELF-REPRESENTED LITIGANTS, FINAL REPORT 21 (Oct. 2005),
https://cdn.ca9.uscourts.gov/datastore/judicial-council/publications/prose/FinalTaskForceReport.pdf.
DONNA STIENSTRA, JARED BATAILLON & JASON A. CANTONE, FED. JUD. CTR., ASSISTANCE TO PRO SE LITIGANTS IN
U.S. DISTRICT COURTS: A REPORT ON SURVEYS OF CLERKS OF COURT AND CHIEF JUDGES (2011),
https://www.govinfo.gov/content/pkg/GOVPUB-JU7-PURL-gpo73052/pdf/GOVPUB-JU7-PURL-gpo73052.pdf).
6
ADMIN. OFF. OF THE U.S. CTS., APPENDIX 1 - COURT SUPPORT STAFFING app. 1.7 (2024),
https://www.uscourts.gov/sites/default/files/fy_2025_appendix_01_court_support_staffing.pdf
[hereinafter
APPENDIX 1 - COURT SUPPORT STAFFING]; ADMIN. OFF. OF U.S. CTS., COURTS OF APPEALS, DISTRICT COURTS,
AND
OTHER
JUDICIAL
SERVICES:
SALARIES
AND
EXPENSES
4.8
(2024),
https://www.uscourts.gov/sites/default/files/section_04_salaries_and_expenses.pdf). The formula for staffing levels
(nine cases for a full-time death penalty clerk) suggests that about 50 were focused on capital cases. APPENDIX 1 COURT SUPPORT STAFFING, supra, app. 1.7. In the Ninth Circuit, the “position of Pro Se Staff Attorney (PSSA) was
sometimes referred to as Pro Se Law Clerk,” and “PSSAs track the cases, drafting IFP and screening orders.”
Memorandum from Charles R. Pyle, Chair of Pro Se Litig. Comm., & James P. Donohue, Outgoing Chair of Pro Se
Litig. Comm., to Ninth Cir. Judicial Council (Oct. 17, 2014), https://cdn.ca9.uscourts.gov/datastore/judicialcouncil/publications/prose/Pro_Se_Committee_Interim_Report_14.pdf.
7
Judith Resnik, Henry Wu, Jenn Dikler, David T. Wong, Romina Lilollari, Claire Stobb, Elizabeth Beling, Avital
Fried, Anna Selbrede, Jack Sollows, Mikael Tessema & Julia Udell, Lawyerless Litigants, Filing Fees, Transaction
Costs, and the Federal Courts: Learning from SCALES, 119 NW. UNIV. L. REV. 109 (2024).
8
Id. at 160.
9
Richard Zorza, who coordinated a Self-Represented Litigation Network, stated that “[a]lthough it is a minor
simplification step, the plain language and forms movement has shown how small changes in the process can have a
significant impact throughout the system. Improvements in data collection potentially result in smoother processes
and less wasted time.” Richard Zorza, Some First Thoughts on Court Simplification: The Key to Civil Access and
Justice Transformation, 61 DRAKE L. REV. 845, 864 (2013). See also Hammond, supra note 3, at 1503-05.
10
Access to Justice through Simplification: A Roadmap for People-Centered Simplification of Federal Government
Forms, Processes, and Language, WHITE HOUSE LEGAL AID INTERAGENCY ROUNDTABLE 7 (2022),
https://www.justice.gov/d9/2023-03/Legal%20Aid%20Interagency%20Roundtable%202022%20Report.pdf.
2
Comment on Proposed Revision to Form 4, Federal Rules of Appellate Procedure January 28, 2025
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Page 9 of 251
11
Id. at 9.
Id. at 11.
13
See Filing Fairness Toolkit: Simplifying Court Filing for All, LEGAL DESIGN LAB & DEBORAH L. RHODE CTR. ON
THE
LEGAL
PRO.
(2023),
https://filingfairnessproject.law.stanford.edu/wpcontent/uploads/2023/11/SLS_FilingFairnessProject_FF.pdf; see also Current Projects, ACCESS TO JUST. LAB,
https://a2jlab.org/current-projects; Home, SELF-REPRESENTED LITIG. NETWORK, https://www.srln.org.
14
Wells v. Brown, 58 F.4th 1347, 1364 (11th Cir. 2023) (en banc) (Rosenbaum, J., joined by William
Pryor, C.J., and Jill Pryor, J., concurring).
15
Serna v. Irvine, No. 22–cv–02998–WJM–MDB, 2023 WL 2261143 (D. Colo. Feb. 28, 2023); Vora v. Dionne,
No. 22–cv–00572–CNS–MDB, 2023 WL 1784227 (D. Colo. Feb. 6, 2023); Muniz v. Thompas, No. 2:21-cv-1820TLN-AC (E.D. Cal. Mar. 23, 2023); Michael Karlik, Federal Judge in Colorado Springs Deploys New Tool for SelfRepresented Plaintiffs, COLO. POLS. (Feb. 2, 2023), https://www.coloradopolitics.com/courts/federal-judge-incolorado-springs-deploys-new-tool-for-self-represented-plaintiffs/article_daff024a-a30a-11ed-b3ce3bab7614cebd.html; Michael Karlik, Second Federal Judge in Colorado Adopts Plain English Summaries in
Decisions, COLO. POLS. (Mar. 10, 2023), https://www.coloradopolitics.com/courts/second-federal-judge-in-coloradoadopts-plain-english-summaries-in-decisions/article_fdad5baa-bec3-11ed-bb31-4399aa8d9a99.html).
16
Proposed Amendments Published for Public Comment, U.S. CTS., https://www.uscourts.gov/rulespolicies/proposed-amendments-published-public-comment.
17
Medicaid By State: Alternative Names and Contact Information, AM. COUNCIL ON AGING (July 10, 2023),
https://www.medicaidplanningassistance.org/state-medicaid-resources.
12
Comment on Proposed Revision to Form 4, Federal Rules of Appellate Procedure January 28, 2025
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TAB 6
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December 19, 2024
Honorable John D. Bates
Chair, Committee on Rules of Practice and Procedure
Judicial Conference of the United States
One Columbus Circle Northeast
Washington, District of Columbia 20544
Re: Request for Comments on Proposed Amendments to Rule 29
Dear Judge Bates:
I write to express the views of the Chamber of Commerce of the United States of America
on the proposed amendments to Rule 29 of the Federal Rules of Appellate Procedure, including:
(i) the proposal to require amici to disclose whether a party has contributed 25% of an amicus
organization’s total revenue in the past year; (ii) the proposal to require amici to disclose the
identities of certain non-party associational members who contribute to the preparation of their
own association’s amicus brief; (iii) the proposal to eliminate the option to file an amicus brief on
consent during a court’s initial consideration of a case on the merits; and (iv) the proposal to bar
supposedly “redundant” amicus briefs.
The Committee should reconsider these proposals. As discussed below, Rule 29 already
safeguards the integrity of the judicial process with respect to amicus briefs, and it does so in a
manner that is consistent with the First Amendment. The contemplated disclosure amendments to
Rule 29 are unnecessary, and they are not sufficiently tailored to avoid encroachment on core
associational rights. The disclosure amendments would also discriminate against established
membership organizations compared with ad hoc associations by requiring greater disclosure of
established organizations’ members. That differential treatment, which itself raises First
Amendment concerns, should be rejected.
The proposals to eliminate the consent option and to reduce the number of amicus briefs
filed are likewise misguided. Rule 29’s current framework champions judicial economy by
permitting the parties to resolve most issues without the need for judicial intervention, while
leaving courts free to ignore unhelpful or duplicative amicus briefs and to strike any that create
recusal issues. Imposing additional hurdles pursues the wrong goal. It also will burden prospective
amici, reduce the quality of amicus briefing, and add to courts’ workload by cluttering their dockets
with unnecessary motions for leave to file. These amendments should also be rejected.
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I.
The Proposed Disclosure Amendments
A.
Rule 29 already protects the integrity of amicus briefing in a manner
consistent with the First Amendment.
As an initial matter, it is unclear why Rule 29 should be amended at all. As the Advisory
Committee noted in its report to the Standing Committee on the Rules of Practice and Procedure,
the Advisory Committee appointed a subcommittee to consider potential amendments to Rule 29
only “after learning of a bill introduced in Congress that would institute a registration and
disclosure system for amici curiae like the one that applies to lobbyists,” and in anticipation of
congressional inquiries regarding the “disclosure requirements for organizations that file amicus
briefs.” Report of the Advisory Committee on Appellate Rules at 11 (revised Aug. 15, 2024)
(appended to Preliminary Draft of Proposed Amendments) (“August Report”); see Letter from
Sen. Sheldon Whitehouse & Rep. Henry C. Johnson to Hon. John D. Bates at 1, 6 (Feb. 23, 2021)
(“Whitehouse Letter”) (encouraging the Standing Committee to “address the problem of
inadequate funding disclosure requirements” in order to root out “anonymous judicial lobbying”).
Those concerns rested on a fundamental misapprehension of the role and purpose of amicus
briefing in the federal courts. Amicus briefing is not a form of lobbying, as the Advisory
Committee has acknowledged. See August Report at 12 (“[A]micus briefs are significantly
different from lobbying. Amicus briefs are filed with a court, available to the public, and the
arguments made by amici can be rebutted by the parties. Lobbying activity, by definition, consists
of non-public attempts to influence the legislative or executive branch.”). The influence of an
amicus curiae is directly proportional to the persuasive value of the arguments presented in the
briefs submitted by that amicus. The weight that courts afford to amicus briefs submitted by the
ACLU, for instance, depends not on the individual identities of that organization’s members or
donors, but on the strength of the arguments made in the brief.
Indeed, the suggestion from some members of Congress that amicus organizations must
disclose their members or donors to the public in order to shine a light on the “influence” of those
“who seek to shape the law through the courts,” Whitehouse Letter at 2, would introduce the very
appearance of improper judicial influence that these members of Congress seek to avoid. 1 If
anything, anonymity of an association’s members confirms that an amicus brief submitted by that
association will be accorded weight based on the strength of its arguments, rather than the identities
or perceived influence of the association’s members. Compelled disclosure of an amicus’s
members or donors threatens to undermine that system and create an appearance of judicial
partiality where in truth there is none, either in appearance or in fact.
The advisory committee notes that while “[s]ome have suggested that information about an
amicus is unnecessary because the only thing that matters about an amicus brief is the merits of
the legal arguments in that brief,” “courts do consider the identity and perspective of an amicus to
be relevant” at times. August Report at 38. While the identity of an amicus organization itself,
and in turn, the unique perspective that the organization may bring to the case may be relevant, the
advisory committee cites no evidence suggesting that judges are more or less likely to rule for a
particular position because of the specific identities of the organization’s members.
1
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Calls for compelled disclosure of associational membership are also openly hostile to core
First Amendment principles. There is a “vital relationship between [the] freedom to associate and
privacy in one’s associations.” Americans for Prosperity Foundation v. Bonta, 594 U.S. 595, 606
(2021) (quoting NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958)). Accordingly,
the compelled disclosure of an association’s members inevitably exerts a “deterrent effect on the
exercise of First Amendment rights.” Id. at 607 (plurality) (quoting Buckley v. Valeo, 424 U.S. 1,
65 (1976)). For this reason, the First Amendment requires at least “exacting scrutiny” of
governmental regulations that compel the disclosure of an association’s membership. Id. at 607–
08; see also id. at 619 (Thomas, J., concurring in part and concurring in the judgment) (“strict
scrutiny [applies] to laws that compel disclosure of protected First Amendment association”); id.
at 623 (Alito, J., concurring in part and concurring in the judgment) (“I see no need to decide which
standard should be applied here.”). Under the exacting scrutiny standard, “there must be ‘a
substantial relation between the disclosure requirement and a sufficiently important governmental
interest’” that “reflect[s] the seriousness of the actual burden on First Amendment rights.” Id. at
607 (plurality) (quoting Doe v. Reed, 561 U.S. 186, 196 (2010)). Furthermore, the form and degree
of compulsion must be “narrowly tailored to the government’s asserted interest.” Id.
As it stands—and has stood for years—Rule 29 appropriately conforms to those First
Amendment principles. The disclosure requirements of Rule 29 address two concerns. First, they
prevent parties from seeking to “circumvent page limits on the parties’ briefs” by ghostwriting or
otherwise directing the arguments presented in amicus briefs. Fed. R. App. P. 29 advisory
committee notes. Second, they “help judges to assess whether the amicus itself considers the [case]
important enough to sustain the cost and effort of filing an amicus brief.” Id.
In its current form, Rule 29 is narrowly tailored to address those concerns. Specifically,
Rule 29 requires amici to submit a statement disclosing whether: (i) “a party’s counsel authored
the brief in whole or in part;” (ii) “a party or a party’s counsel contributed money that was intended
to fund preparing or submitting the brief;” and (iii) “a person—other than the amicus curiae, its
members, or its counsel—contributed money that was intended to fund preparing or submitting
the brief and, if so, identifies each such person.” Fed. R. App. P. 29(a)(4)(E). Those measures
protect the integrity of amicus submissions by ensuring that amicus briefs genuinely reflect the
views and interests of the amicus itself and are not simply supplemental party briefs. They do not
broadly intrude on the privacy of the relationships between amicus organizations and their
members, and thus do not deter amicus organizations or their members from submitting amicus
briefs.
B.
The contemplated disclosure amendments raise serious First Amendment
concerns.
The disclosure amendments contemplated by the Advisory Committee reflect a subtle—
but significant—departure from the principles that undergird the current disclosure mandates of
Rule 29. To be sure, the amendments currently under discussion are not as radical as those
previously proposed by certain members of Congress. See, e.g., S. 1411 § 2(a), 116th Cong. (2019)
(requiring that every amicus organization filing three or more amicus briefs per year disclose the
identity of any person contributing at least $100,000 or 3 percent of the organization’s revenues,
and that such information be “made publicly available indefinitely” by the Administrative Office
of the U.S. Courts). But they appear to share some of the same animating premises. As drafted,
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4
the amendments go beyond the current objectives of Rule 29—designed to protect the integrity of
amicus submissions—by more broadly compelling disclosure of associational relationships
between an amicus and its members. Those new disclosure requirements threaten to infringe the
associational rights of amicus organizations and their members.
1.
Mandatory disclosure of the identities of significant contributors will
inhibit the First Amendment rights of amicus organizations and their
members.
First, the amendments under consideration would compel disclosure of the relationships
between an amicus and its members in situations where the members are parties to a case in which
the amicus submits a brief, and where such parties (either singly or collectively) are significant
contributors to the general operations of the amicus. Specifically, an amicus would be forced to
disclose whether “a party, its counsel, or any combination of parties, their counsel, or both has,
during the 12 months before the brief was filed, contributed or pledged to contribute an amount
equal to 25% or more of the total revenue of the amicus curiae for its prior fiscal year.” August
Report, Draft Proposal Rule 29(b)(4) (p. 35). And the amicus would further be required to disclose
the identities of any such party or counsel. August Report, Draft Proposal Rule 29(c) (p. 35).
These provisions are unnecessary, counterproductive, and threaten to have a chilling effect
on amicus organizations. They are unnecessary because Rule 29 already mandates disclosure of
instances where a party (including a party that is a member of the amicus organization) has directed
or shaped the content of an amicus brief either by authoring it (in whole or in part) or by directly
contributing money for the preparation of the brief. Fed. R. App. P. 29(a)(4)(E)(i)–(ii). In those
instances, disclosure well serves the purpose of alerting the court to the possibility that the “amicus
brief” is substantively a party brief.
But that purpose is not served by mandating disclosure of a donor relationship between the
party and the amicus anytime a combination of parties and counsel has contributed 25% or more
of the general revenues of the amicus. There are instances in which an amicus organization that
represents the interests of a particular industry or trade might have at least one large donor whose
contributions account for over 25% of the organization’s annual revenues. In those instances, the
amicus organization cannot fairly be said to represent only the interests of the large donor; after
all, such an organization will have other members and donors that account for up to 75% of its
yearly revenues and that care deeply about the issues before the court. Where the large donor is a
party to an appeal, an industry or trade association should be able to appear as amicus on behalf of
its own interests—and the interests of its non-party members—without fear that its filing will be
discounted as the work of the party itself. The disclosure rule under consideration threatens to
deter filings from amici in those cases, thereby reducing the ability of non-party associational
members to speak up (through their existing associations) in appeals that affect them.
This concern is especially acute with respect to appeals in which multiple participants in
the same industry are named as parties, where the parties’ contributions to an industry association
may very quickly add up to 25% of the annual revenues of the amicus. In those cases, the interests
of an industry-association amicus speaking up in support of those parties are well known. It is not
clear what transparency interest is served by requiring the amicus to disclose whether any of those
specific parties has chosen to be a member of the association. At the same time, forcing an amicus
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to disclose those financial ties at the front of its brief conveys the misleading impression that the
brief is simply a vehicle for those parties to present additional arguments, diminishing the
independent interests and contributions of the amicus and its non-party members. And this
requirement would impose a significant accounting burden on amicus filers. Even where the
parties’ contributions do not sum up to the 25% threshold, it will be unduly burdensome for amici
to track contributions from numerous parties and their counsel to determine compliance with the
rule, particularly in complex cases with many parties.
2.
Mandatory disclosure of contributions for particular briefs from recent
members of existing organizations is arbitrary, and does not withstand
exacting scrutiny under the First Amendment.
Second, the Advisory Committee proposes to mandate disclosure of any non-party—
including an existing member of an amicus organization—“who contributed or pledged to
contribute more than $100 intended to pay for preparing, drafting, or submitting [an amicus] brief,”
unless the person “has been a member of the amicus for the prior 12 months.” August Report,
Draft Proposal Rule 29(e) (p. 36) (emphasis added).2 Yet the contemplated amendment exempts
newly formed amicus organizations from this disclosure requirement, providing that if “an amicus
has existed for less than 12 months, an amicus brief need not disclose contributing members, but
must disclose the date the amicus was created.” Id.
This proposal would directly interfere with associational rights. Under Rule 29 as it is
currently structured, an amicus is not required to disclose any contribution intended to fund a
particular brief if that contribution comes from a member of the amicus organization that is not a
party to the case. See Fed. R. App. P. 29(a)(4)(E)(ii)–(iii). There is no reason to depart from the
existing “member exclusion” to the disclosure requirement. That sensible rule protects
associational rights. Under the First Amendment, amicus organizations that collect supplemental
funding from members to budget for a brief have every right to be heard on an equal basis. Any
demand for the disclosure of the identities of members who make such contributions naturally
imposes considerable burdens on the associational rights of those members. Such demands are
justified in only one circumstance: where the member is a party to the case. See Fed. R. App. P.
29(a)(4)(E)(ii). Absent a member’s participation in a case as a party, there is no threat that a
member’s contribution for the preparation of an amicus brief would serve an improper purpose.
There is also no sound reason to single out new members for disclosure. The Advisory
Committee’s basis for this singling out is that the rule would “effectively treat[ ]” a “new member
making contributions earmarked for a particular brief … as a non-member” to “close” a purported
“loophole.” August Report at 24. The idea seems to be that non-party nonmembers of an amicus
organization could evade disclosure of their earmarked contributions in support of a particular
2
The previously proposed threshold was $1,000. See Report of the Advisory Committee on
Appellate Rules, Draft Proposal Rule 29(d) (p. 8) (Dec. 6, 2023). It seems doubtful that
organizations could efficiently “crowdfund” solely with contributions less than $100. Cf. Randall
v. Sorrell, 548 U.S. 230, 249–53 (2006) (plurality) (holding $200 contribution limits “too low …
to survive First Amendment scrutiny”). But regardless of the threshold, any disclosure
requirement that does not include an exemption for members of an amicus organization would
seriously infringe the First Amendment rights of associations and their members.
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amicus brief by becoming members of the amicus organization. But the First Amendment
affirmatively encourages the public to form private associations by shielding those associations
from blunderbuss inquiries into the identities of their members. Thus, there would be no evasion
or “loophole” in this circumstance; just individuals or entities joining private associations for their
intended purpose. A new or “recent” member of a membership association has the same First
Amendment rights as other members. Moreover, it is ultimately the membership organization that
is the amicus presenting the views of all its members, no matter when they joined.
Perhaps the concern is temporary membership—that is, where a non-party has become a
member of the amicus organization solely for the purpose of making a contribution for an amicus
brief while intending to withdraw from the amicus organization following submission of the brief.
We are not aware of any evidence suggesting that there is a practical problem with temporary
members. And even temporary associations are entitled to First Amendment protection so long as
they reflect a “collective effort on behalf of shared goals,” and the First Amendment looks askance
at “intrusion into the internal structure or affairs of an association.” Roberts v. U.S. Jaycees, 468
U.S. 609, 622–23 (1984). Some associations have members who come and go, or who periodically
join and leave and re-join; others have members who remain for decades. And many have
members whose membership lapses temporarily, sometimes as the result of an oversight or an
internal delay, and who then re-join; associations and members should not be penalized for that
reason. Policing the degree of associational commitment of an amicus organization’s individual
members is not an appropriate task for Rule 29—regardless of whether an amicus organization has
been around for decades or was newly formed. It is the act of association, not an organization’s
pedigree, that garners First Amendment protection.
Under the contemplated amendments, moreover, a longstanding amicus organization must
disclose any earmarked contributions received by its newest members, but an entirely new amicus
organization may avoid such disclosure and instead simply note its date of organization. See
August Report, Draft Proposal Rule 29(e) (p. 36). Thus, an ad hoc association organized solely
for the purpose of presenting a particular amicus brief in a particular case may shield the identities
of all of its member-contributors from disclosure (no matter the size of their contributions), while
a longstanding association must disclose the identity of any relatively new member that has made
a contribution of more than $100 for the preparation of a particular amicus brief. This dichotomy
makes little sense, indicating that the amendment is not narrowly tailored to achieve an important
objective. For that reason, at least, the current proposal cannot survive even “exacting” judicial
scrutiny. Americans for Prosperity Foundation, 594 U.S. at 608.
The Chamber appreciates the Advisory Committee’s concern for the interests of newly
formed amicus organizations and its concomitant interest in protecting “crowdfunding with small
anonymous donations.” August Report at 11; see also Whitehouse Letter at 6–7 (expressing
concern that existing amicus-disclosure rules disfavor such crowdfunded briefs). Just as debate in
the public square is enriched by the proliferation of speech, the proliferation of amicus briefs
submitted by new and diverse amicus organizations—including wholly ad hoc groups—promotes
speech and can be a significant aid to judicial decisionmaking. But there is no reason why Rule
29 should discriminate against existing amicus organizations in favor of new or ad hoc
organizations. Longstanding amici may bring greater institutional expertise and perspective to the
presentation of legal issues on appeal, and their contributions should be encouraged on an equal
basis. There is no sufficient reason for compelling greater levels of membership disclosure with
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respect to such organizations than with respect to new or ad hoc amicus groups.
The Committee should therefore retain the existing “member exclusion” in Rule 29—
which does not mandate disclosure of the contributions of any members—even if the rule provides
that earmarked contributions of non-members need not be disclosed if they are less than $100.
This approach would protect the First Amendment rights of new and existing membership
associations and their members on an equal footing while providing latitude for ad hoc amicus
groups to collect contributions for anonymously crowdfunded briefs.
II.
The Proposed Motion Requirement
A.
Rule 29 promotes judicial economy and robust amicus participation.
In its current form, Rule 29 requires counsel for prospective amici to obtain either leave of
the court or consent of the parties. Fed. R. App. 29(a)(2). The option to file on consent gives
counsel for both parties an opportunity to resolve any potential issues without unnecessarily
involving the court.
In most cases, experienced lawyers consent to amicus filings “to avoid burdening the Court
with the need to rule on the motion.” Joseph D. Kearney & Thomas W. Merrill, The Influence of
Amicus Curiae Briefs on the Supreme Court, 148 U. Pa. L. Rev. 743, 762 (2000); see Neonatology
Assocs., P.A. v. Comm’r, 293 F.3d 128, 132 n.1 (3d Cir. 2002) (Alito, J., in chambers) (“the same
generally holds true in the courts of appeals as well”). But lawyers can and do object when
circumstances warrant. For example, the Justice Department advises that although the United
States will, in general, “freely grant its consent to the filing of amicus briefs,” its attorneys “may
condition consent on compliance with” local rules and standing orders “relating to briefing
schedules, page lengths, or similar matters.” U.S. Dep’t of Justice, Justice Manual § 2-2.125
(2018). Similarly, private counsel may justifiably withhold consent where amicus participation
would unduly delay or prejudice the adjudication of the original parties’ rights.
The practice of freely granting consent in most cases reflects confidence among attorneys
that the federal judiciary will reach the right result when all views are fully aired. As Justice
Holmes explained long ago, it is “the theory of our Constitution” that “the best test of truth is the
power of the thought to get itself accepted in the competition of the market.” Abrams v. United
States, 250 U.S. 616, 630 (1919) (dissenting opinion); see also United States v. Alvarez, 567 U.S.
709, 729 (2012) (plurality) (“Truth needs neither handcuffs nor a badge for its vindication.”);
Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring) (“the remedy to be
applied is more speech, not enforced silence”). While the Advisory Committee contends that “a
would-be amicus does not have a [First Amendment] right to be heard in court” and frets that “the
norm among counsel … to uniformly consent” results in too little “constraint,” August Report at
20, 26, the reason most counsel freely consent absent exceptional circumstances is their confidence
“that the opposition need not be silenced because truth will ultimately triumph,” FEC v. HallTyner Election Campaign Comm., 678 F.2d 416, 419 n.7 (2d Cir. 1982); see id. (“Whoever knew
truth put to the worse, in a free and open encounter?” (quoting J. Milton, Areopagitica 78, 126
(J.C. Suffolk ed. 1968) (alteration omitted)). Consistent with that view, experienced attorneys
recognize that the long-term interests of their clients are best served when all are heard so that
erroneous views can be confronted, not suppressed.
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As explained below, the proposals to amend Rule 29 would sacrifice judicial economy for
little if any offsetting benefit. Far from failing to provide a “meaningful constraint on amicus
briefs,” August Report at 26, the current Rule 29 is an effective screen that allows the parties to
resolve most issues consistent with the value that all should be heard, and to involve the courts
only when necessary.
B.
The contemplated amendments to eliminate filing on consent and to bar
“redundant” filings will undermine judicial economy.
The proposed amendments to Rule 29 would eliminate the common and accepted practice
of filing amicus briefs on the consent of the parties and would instead require a motion for leave
to file. August Report, Draft Proposal Rule 29(a)(2) (pp. 28–29). The proposed amendments
would further require such motions to justify how “the brief is helpful and why it serves the
purpose set forth in Rule 29(a)(2),” and would “disfavor[ ]” any brief that is “redundant with
another amicus brief” or that does not bring to the court’s attention “relevant matter not already
mentioned by the parties.” August Report, Draft Proposal Rule 29(a)(3)(B) & 29(a)(2) (pp. 28–
29). These amendments are unnecessary and counterproductive.
1.
Eliminating the consent option would move contrary to the Supreme
Court’s direction and would disserve efficient resolution of amicus
participation issues.
To begin with, the proposed amendments start from the false premise that Rule 29 should
do more to “filter” the number of amicus briefs that are filed. August Report at 25, 40 (note to
Draft Proposal Rule 29). While there was a brief time “[i]n the late 1940s and early 1950s” when
the Supreme Court “sought to curtail the filing of amicus curiae briefs,” Kearney & Merrill, supra,
148 U. Pa. L. Rev. at 763, the Supreme Court has for the last seven-and-a-half decades taken an
increasingly permissive approach toward amicus filings, id. at 763–65. Perhaps unsurprisingly,
the Supreme Court’s development of its open-door policy toward amici coincided with its rising
protectiveness for free expression in general. Compare id. at 764 (“After the early 1960s, the
attitude of the Court toward amicus filings in argued cases gradually became one of laissez-faire.”)
with Nadine Strossen, The Paradox of Free Speech in the Digital World, 61 Washburn L.J. 1, 1
(2021) (“The United States Supreme Court has continued a speech-protective trend dating back to
the 1960s”). Today, the Supreme Court “freely allow[s] the filing of amicus briefs.” August
Report at 25. It does not require a motion or consent. See Supreme Court Rules 37.2, 37.3.
The Supreme Court’s permissive approach to amicus briefs recognizes that they are often
useful. Courts at all levels of the federal judicial system regularly “credit” and cite “helpful amicus
brief[s].” Stratton v. Bentley Univ., 113 F.4th 25, 43 n.12 (1st Cir. 2024); see also, e.g., Prairie
Rivers Network v. Dynegy Midwest Generation, LLC, 976 F.3d 761, 764 (7th Cir. 2020)
(describing the Chamber’s amicus brief as “helpful” and “insight[ful]”). The Supreme Court has
reminded lower courts that amici may rightly raise jurisdictional or other threshold issues
overlooked by the parties, John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133 (2008)
(“The Government’s brief said nothing about the statute of limitations, but an amicus brief called
the issue to the court’s attention.”); accord United States v. Baltazar-Sebastian, 990 F.3d 939,
943–44 (5th Cir. 2021) (“our jurisdiction is challenged not by [the defendant], but by an amicus
curiae”), as well as “sharp[en] adversarial presentation of the issues” that are raised by the parties,
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United States v. Windsor, 570 U.S. 744, 760–61 (2013).
Some of the Justices have highlighted the particular usefulness of amicus briefs in cases
that involve technical, scientific, or historical issues. See, e.g., Stephen G. Breyer, The
Interdependence of Science and Law, 82 Judicature 24, 26 (1998). Another Justice has noted that
amicus briefs may “collect background or factual references that merit judicial notice,” “argue
points deemed too far-reaching for emphasis by a party intent on winning a particular case,” or
“explain the impact a potential holding might have on an industry or other group.” Neonatology
Assocs., P.A., 293 F.3d at 132 (Alito, J., in chambers). And every current Justice regularly cites
amicus briefs in his or her opinions. In one recent term, the Justices cited amicus briefs in 65
percent of argued cases with amicus participation and signed majority opinions. See Anthony J.
Franze & R. Reeves Anderson, Amicus Curiae at the Supreme Court: Last Term and the Decade
in Review, The National Law Journal (Nov. 18, 2020), https://tinyurl.com/jswf2435.
The Supreme Court has even found that assessing the sheer number of amicus briefs filed
in a particular case can be useful. In Americans for Prosperity Foundation v. Bonta, 594 U.S. 595
(2021), for example, the Court considered a First Amendment overbreadth challenge to a
California statute that required charitable organizations to disclose the identity of their major
donors to the state Attorney General’s Office. The Court found that “[t]he gravity of the privacy
concerns in th[at] context [was] further underscored by the filings of hundreds of organizations as
amici curiae in support of the petitioners,” observing that “these organizations span[ned] the
ideological spectrum, and indeed the full range of human endeavors.” Id. at 617. The Court
reasoned that this high number of amicus briefs helped show the illegitimate sweep of the
California statute, explaining that “[t]he deterrent effect feared by these organizations is real and
pervasive, even if their concerns are not shared by every single charity operating or raising funds
in California.” Id.
The Advisory Committee acknowledges that its proposal to curtail amicus filing is out-ofstep with Supreme Court practice, but it justifies that departure primarily based on perceived
recusal issues in the courts of appeals. See August Report at 25–26. Respectfully, the contention
that a motion requirement is necessary to solve those recusal issues is mistaken. Rule 29 already
provides that a court may “prohibit the filing of or may strike an amicus brief that would result in
a judge’s disqualification”—whether or not the amicus organization filed on consent or submitted
a motion for leave to the court. Fed. R. App. P. 29(a)(2).3 And courts routinely reject such filings,
see, e.g., Order filed July 9, 2024, TikTok, Inc. v. Garland, D.C. Cir. No. 24-1113 (ordering
“stricken” amicus brief filed on consent that “would result in recusal of a member of the panel that
has been assigned to the case”); Hydro Res., Inc. v. U.S. EPA, 608 F.3d 1131, 1143 n.7 (10th Cir.
2010) (“We deny … leave to file an amicus brief only because granting the motion would cause
one or more members of this court to recuse themselves from the matter.”), with some having
formalized the practice in their local procedures, see, e.g., D.C. Circuit Handbook of Practice and
Internal Procedures § IX.A.4 (amended March 16, 2021) (“the Court will not accept an amicus
brief where it would result in the recusal of a member of the panel”); 2nd Cir. R. 29.1 (“The court
ordinarily will deny leave to file an amicus brief when … the filing of the brief might cause the
3
This language, added by amendment in 2018, reflects the longstanding practice of the federal
appellate courts. See 16AA Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 3975 (5th ed. June 2024 update).
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recusal of the judge.”).4
In addition to being unnecessary to address recusal, a motions requirement will place
substantial burdens on the courts, the parties, and amici. Indeed, the “burdens upon litigants and
the Court” was one of the reasons the Supreme Court eliminated both its motion requirement and
its consent requirement. See Revisions to Rules of the Supreme Court at 9 (Dec. 5, 2022) (Clerk’s
Comment to Rule 37), https://tinyurl.com/4sah4jyd. The Advisory Committee heard testimony
that in the courts of appeals as many as 90% of current amicus filings rely on consent. Whatever
the precise amount, the Committee acknowledges that under the current Rule 29 most participation
is resolved through consent. August Report at 26. If that option is eliminated, then courts would
be called upon to adjudicate leave in every case, and for every amicus brief, rather than only
instances in which a party objects. The result would be a dramatic increase in the number of
motions for leave that amici must file, that parties must respond to, and that courts must resolve.
Timing considerations further amplify this increased burden on the courts and litigants.
Motions for leave require a decision “at a relatively early stage of the appeal” when it is “often
difficult … to tell with any accuracy if a proposed amicus filing will be helpful.” Neonatology
Assocs., 293 F.3d at 132 (Alito, J., in chambers). “Furthermore, such a motion may be assigned
to a judge or panel of judges who will not decide the merits of the appeal, and therefore the judge
or judges who must rule on the motion must attempt to determine, not whether the proposed amicus
brief would be helpful to them, but whether it might be helpful to others who may view the case
differently.” Id. at 133. Such decisions are difficult to make without carefully studying all the
merits briefs and issues, so, as then-Judge Alito explained, the better course is simply to accept
amicus filings: “If an amicus brief that turns out to be unhelpful is filed, the merits panel, after
studying the case, will often be able to make that determination without much trouble and can then
simply disregard the amicus brief.” Id.; accord Voices for Choices v. Illinois Bell Tel. Co., 339
F.3d 542, 544 (7th Cir. 2003) (Posner, J., in chambers) (explaining “many courts … would prefer
to ignore amicus curiae briefs than to screen them”). And if motions for leave are decided before
a merits panel is assigned, then the motions panel will plainly not be able to assess recusal in
deciding whether to grant leave to file.
2.
Enforcing the redundancy provision would place a significant
administrative burden on amicus filers and courts.
The administrative burdens discussed above would be further compounded by the Advisory
Committee’s proposal to “disfavor[ ]” amicus briefs that are thought to be “redundant with another
amicus brief” or with a “matter” raised by “the parties.” See August Report, Draft Proposal Rule
29(a)(2) & 29(a)(3)(B) (28–29). Again, it will be time-consuming for judges to examine amicus
motions and proposed briefs independent of the case, and that is doubly true if they must determine
It was raised at the Advisory Committee’s October 2024 meeting that the Ninth Circuit initially
screens for recusals prior to making panel assignments, opening the door to potential
gamesmanship by amici. That possibility appears remote: a party seeking to avoid a particular
judge would need to guess what amicus might cause the judge to recuse and then convince that
amicus to file—before knowing whether that judge would even have been assigned. To the extent
this risk is plausible, a more direct solution would be to simply strike an amicus brief that could
trigger a recusal (before or after panel assignment).
4
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whether a prospective argument is wholly (or substantially) redundant or sheds some new light on
a problem. After all, party presentation principles deter amici from raising entirely new issues,
see, e.g., Russo v. Bryn Mawr Tr. Co., 2024 WL 3738643, at *6 n.4 (3d Cir. Aug. 9, 2024), so
there will be at least some repetition as amici show how the themes they advance are applicable to
the parties’ dispute. For seasoned advocates, this balance is often as much art as science.
Requiring judges to spend their time reading motions with explanations about how a prospective
amici’s arguments fit within the framework of the parties’ arguments without overlapping too
much—when judges could just read the briefs instead—is likely to be a waste of already limited
judicial resources. See Neonatology Associates, 293 F.3d at 133 (Alito, J. in chambers) (“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”).
This proposal presents an even more significant administrative burden on courts with
respect to redundancy among amici. In certain cases, large numbers of amicus organizations will
submit briefs that may discuss similar issues. Judges will therefore not only have to assess whether
an amicus brief is redundant with a party brief, but with the collection of other amicus briefs
submitted for consideration. Focusing on redundancy will deprive courts of a diverse range of
perspectives, despite the Supreme Court’s recognition that amicus briefs from “organizations
span[ning] the ideological spectrum” may itself be highly relevant to a court’s resolution of the
issues before it. Americans for Prosperity Foundation, 594 U.S. at 617; see also Transcript of
Oral Argument at 73:1–6, Williams v. Washington, No. 23-191 (U.S. Oct. 7, 2024) (Justice
Kavanaugh: “[W]e have amicus briefs from a wide variety of groups, from ACLU and Public
Citizen to religious liberty groups, to the Chamber of Commerce, all of which say that your rule
will really hinder federal civil rights claims from getting into state court.”).
There is also no guidance in the proposal about what a court should do when amicus
organizations are unable to eliminate the risk of redundancy through coordination—perhaps
because they are not aware of every amicus organization that intends to file,5 because the unique
identity and perspective of the amicus organization is itself relevant to the issues before the court,
or because certain amicus organizations are unwilling to forgo particular lines of argument. In a
contest among various amici, judges may choose to grant the motion of whichever amicus
organization filed first. “The spectacle of the race to the courthouse,” the Administrative
Conference has explained in another context subsequently ended by Congress, “is an unedifying
one that tends to discredit the administrative and judicial processes and subject them to warranted
ridicule.” Admin. Conf. of the U.S., Recommendation 80-5, Eliminating or Simplifying the “Race
to the Courthouse” in Appeals from Agency Action, 45 Fed. Reg. 84,954 (Dec. 24, 1980); see also
Sacramento Mun. Util. Dist. v. FERC, 683 F.3d 769, 770 (7th Cir. 2012) (Easterbrook, J.)
(describing “unseemly races to the courthouse”). The first brief filed is not always the most helpful
to the court, and the Advisory Committee should avoid adopting a rule that favors speed over highquality advocacy. Judges should be free to review any amicus brief that persuasively addresses an
5
This practical problem would also make it difficult or impossible for prospective amici to
disclose “connections among amici,” as some have wrongly suggested the Committee should
additionally require. Comments of Sen. Sheldon Whitehouse, et al., at 3 (filed Sept. 12, 2024),
https://tinyurl.com/2psp7fja. Furthermore, as others have rightly indicated, that significant burden
delivers no offsetting benefits to the judicial process. See Comments of Sen. McConnell, et al.
(filed Sept. 10, 2024), https://tinyurl.com/yv9xzh4b.
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issue, regardless of when it was filed relative to other amicus briefs.
The cumulative impact of the proposed motion amendments would be to discourage amicus
participation by putting a thumb on the scale against amicus briefs. That is, after all, its intent.
Far from encouraging amicus briefs, the proposal explains when briefs are “disfavored.” See
August Report, Draft Proposal Rule 29(a)(2) & 29(a)(3)(B) (28–29). And it requires prospective
amici to draft motions to explain the value of their arguments (without actually making them), to
justify why the arguments are different from those presented by the parties (but not so different as
to violate the party presentation rule), and to somehow assess whether other prospective amici
have (or may) make similar arguments. This shift away from the current permissive requirements
of Rule 29 makes it far less likely that judges will “err on the side of granting leave.” Neonatology
Associates, 293 F.3d at 133 (Alito, J. in chambers). And in turn, these burdens and the heightened
risk of denial may discourage an amicus organization from submitting a brief at all.
That shift is monumental. With the vast majority of amicus briefs filed on consent, a
burdensome and detailed motion requirement for each and every amicus brief would
fundamentally change amicus practice in the courts of appeals. Unlike the current Rule 29, the
goal of the proposed amendments is to “filter” the number of amicus briefs. August Report at 25;
see id. at 40 (“the consent requirement fails to serve as a useful filter”). That is out of step with
the open, speech-protective approach long favored by the Supreme Court and the courts of appeals,
and the Committee should reject the proposed amendments.
*
*
*
The Chamber appreciates the careful and deliberate manner in which the Committee has
approached these issues and is grateful for the opportunity to comment on the Committee’s
important work. Thank you for your consideration.
Respectfully,
Tara Morrissey
Senior Vice President and Deputy Chief
Counsel
U.S. Chamber Litigation Center
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January 29, 2025
Submitted via Regulations.gov
The Honorable John D. Bates
Chair, Committee on Rules of Practice and Procedure
Administrative Office of the United States Courts
One Columbus Circle NE
Washington, DC 20544
Re: Proposed Amendments to Federal Rule of Appellate Procedure 29
(USC-RULES-AP-2024-0001)
Dear Judge Bates:
I write to express the views of Court Accountability on the proposed amendments to Rule 29 of
the Federal Rules of Appellate Procedure that would make much-needed improvements to
disclosures for amicus curiae briefs. We believe that these amendments serve as a necessary
step towards a fairer and more transparent appellate process.
I.
Importance of Transparency in Amicus Filings
At their best, amicus curiae briefs can play a vital role in appellate litigation by providing courts
with diverse perspectives and expertise. As scholars have documented, however, amici can often
act as alter egos of parties, with a range of negative consequences for judicial administration and
fairness.1 For instance, a party can use amici that are under its financial influence or control to
circumvent page limits or advance arguments it prefers not to make itself.2 Perhaps more
troubling, amici and the parties or third-party interests that support them can essentially
misguide a court—and the public—by appearing independent from parties with which they are
associated, through financial connections or otherwise.3 As the Advisory Committee
appropriately recognized, “the identity of an amicus does matter, at least in some cases, to some
judges,” and “members of the public can use the disclosures [of amicus identity] to monitor the
courts, thereby serving both the important governmental interest in appropriate accountability
1
See, e.g., Allison Orr Larsen & Neal Devins, The Amicus Machine, 102 Va. L. Rev. 1901 (2016); Sheldon
Whitehouse, A Flood of Judicial Lobbying: Amicus Influence and Funding Transparency, 131 Yale L.J.F.
141, 159-160 (2021).
2
See, e.g., Fed. R. App. P. 29 advisory committee’s note to 2010 amendment (noting that the Rule 29
disclosure requirement “serves to deter counsel from using an amicus brief to circumvent page limits on
the parties’ briefs”); Comm. on Rules of Practice and Procedure, Judicial Conference of the United States,
Proposed Amendments to the Federal Rules of Appellate and Bankruptcy Procedure, and the Federal
Rules of Evidence (“Proposed Amendments”) at 21 (Aug. 2024) (“[I]n our adversary system, parties are
given a limited opportunity to persuade a court and should not be able to evade those limits by using a
proxy.”).
3
Proposed Amendments at 21 (“[A] court should not be misled into thinking that an amicus is more
independent of a party than it is.”).
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and public confidence in the courts.”4 This transparency rationale applies both to identifying the
amicus and those who significantly fund it.
II.
Shortcomings of the Current Rule 29 Disclosure Scheme
The current form of Rule 29 imposes a limited disclosure requirement on non-governmental
amici. Non-government amici must disclose whether “a party’s counsel authored the brief in
whole or in part”; “a party or a party’s counsel contributed money that was intended to fund
preparing or submitting the brief”; and “a person—other than the amicus curiae, its members, or
its counsel—contributed money that was intended to fund preparing or submitting the brief.”5
The funding disclosures are triggered only for contributions earmarked for preparing or
submitting the brief and do not reach contributions purportedly made to an amicus for its
general fund or other purposes. The rule also exempts from disclosure a payment made by
non-party “members” of an amicus, even if the payment is earmarked for the brief.6
The limitations of the funding disclosure regime allow meaningful financial entanglements to go
undisclosed.7 For example, a party can fund essentially the entire amicus operation of an
organization, but as long as it does not earmark its contribution for the preparation or
submission of a particular amicus brief filed by that organization, the organization’s amicus
filing need not disclose the party’s contribution in a case involving that party.8 Such
disclosure-avoidance schemes have helped the proliferation of the “amicus machine,” in which
amici under the control or influence of a party flood the docket with highly coordinated briefs.9
III.
Benefits of the Proposed Amendments
The proposed amendments make several improvements that will help deter gamesmanship to
avoid amicus funding disclosure. The requirement for an amicus to disclose whether a party, its
counsel, or any combination thereof has in the previous 12 months contributed or pledged to
contribute 25 percent or more of its total revenue for its prior fiscal year will impose needed
disclosure obligations on amici that are financially dependent on parties. Partially closing the
member loophole recognizes that the fact that a funder is a member of an amicus should not
shield that funder from being disclosed for earmarking funds to a particular amicus brief.
Additionally, requiring amici to provide “a concise description of the identity, history,
experience, and interests of the amicus curiae, together with an explanation of how the brief and
the perspective of the amicus will help the court” (and the date of creation if the amicus was
created within the year) should help deter parties from establishing organizations solely to serve
as amici.
4
Proposed Amendments at 20. See also Helen A. Anderson, Frenemies of the Court: The Many Faces of
Amicus Curiae, 49 U. Rich. L. Rev. 361, 379 (2015) (noting that “some courts remain suspicious of amici
curiae with close connections to a party”).
5
Fed. R. App. P. 29(a)(4)(E).
6
Fed. R. App. P. 29(a)(4)(E)(iii).
7
For examples of common entanglements among well-funded parties and amici, see Br. of Amicus Curiae
Professor Paul M. Collins, Jr., in Support of Plaintiff-Appellee, Epic Games, Inc. v. Google LLC, No.
24-6256 (9th Cir. Jan 7, 2025), ECF No. 145
8
See, e.g., Whitehouse, supra n.1.
9
See Larsen & Devins, supra n.1.
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Overall, the proposed amendments enhance the adversarial process and promote fairness in
appellate proceedings, improving access to information about the interests behind amicus
briefs. The amendments provide courts with additional information to evaluate the credibility of
amicus submissions. Disclosure of significant financial contributions helps courts distinguish
between genuinely independent briefs and those influenced by undisclosed interests, which can
unfairly advantage litigants by amplifying the arguments of deeper-pocketed parties.
Finally, as the Advisory Committee details, the Rule 29 amendments are fully consistent with
legal precedent regarding funding disclosure, including Americans for Prosperity Foundation v.
Bonta, 141 S. Ct. 2373 (2021).10 We dispute the premise that there is a right to fund amicus briefs
anonymously or that disclosure obligations on such funding require strict scrutiny, not least
because “a would-be amicus does not have a right to be heard in court.”11 Nonetheless, even
under that standard, the government has a compelling interest in requiring disclosure of amicus
funding for the reasons articulated in the Advisory Committee’s memorandum and above.
IV.
Further Suggested Improvements
We strongly support the proposed enhancements to Rule 29's amicus disclosure requirements.
However, given the breadth of the risk that covert amicus influence and control pose to the
integrity of the appellate process, we respectfully suggest additional improvements to the rule.
First, we believe that the 25-percent funding threshold is set too high, as it allows significant
financial contributions below this level to remain undisclosed. For instance, a donor
contributing 15 or 20 percent of an organization’s revenue still exerts considerable influence on
the amicus’s operations and messaging.
Second, we support the request by Senator Sheldon Whitehouse and Representative Hank
Johnson for a requirement of additional disclosure of financial links between amici. As Senator
Whitehouse and Representative Johnson detail in their comment, such disclosures are needed
to provide greater transparency into amicus machine operations that flood dockets with highly
orchestrated briefs in support of well-funded interests, some of which essentially establish
figurehead organizations to serve as plaintiffs,12 recruit an individual to serve as plaintiff of
convenience, or fund both the law firms bringing the case and the amici.13 The suggestion by
Senator Whitehouse and Representative Johnson for disclosure of connections among amici
would bring needed transparency to these practices.
*
*
*
10
We note that the decision in Americans for Prosperity Foundation v. Bonta was itself a product of a
well-funded and well-coordinated amicus-machine effort. See Whitehouse, supra n.7, at 147-9.
11
Proposed Amendments at 20.
12
See, e.g., Melissa Gira Grant, Who Exactly Is Behind the Supreme Court’s Big Mifepristone Case?, The
New Republic (March 7, 2024),
https://newrepublic.com/article/179626/mifepristone-abortion-supreme-court-alliance-hippocratic-med
icine.
13
See Letter from Sheldon Whitehouse & Hank C. Johnson to John D. Bates (Sept. 12, 2024),
https://www.whitehouse.senate.gov/wp-content/uploads/2024/09/2024-09-12-Amicus-Disclosure-Com
ment-FINAL.pdf.
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The proposed amendments to Rule 29 represent a crucial step toward enhancing transparency
and maintaining the integrity of appellate proceedings. We urge you to adopt them. Thank you
very much for considering these comments.
Respectfully submitted,
Alexander Aronson
Executive Director
Court Accountability
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TAB 8
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January 13, 2025
Honorable John D. Bates
Chair, Committee on Rules of Practice and Procedure
Judicial Conference of the United States
One Columbus Circle Northeast
Washington, District of Columbia 20544
Re: Request for Comments on Proposed Amendments to Federal Rule of Appellate
Procedure 29
Dear Judge Bates:
I am writing as chair of the DRI Center for Law and Public Policy’s Amicus Committee to
comment on the proposed amendments to Federal Rule of Appellate Procedure 29, namely (1) to
urge rejection of the proposed amendment that would eliminate the ability of nongovernmental
amici curiae to file briefs on consent of the parties and replace it with a requirement that the filing
of all nongovernmental amicus briefs require court permission requirement in all instances; and
(2) to relay some concerns regarding the structure and practicality of the proposed amendments
regarding disclosures in Rules 29(a)(3)–(4), 29(b), and 29(c).
The DRI Center for Law and Public Policy
DRI is the largest international membership organization of attorneys defending the interests of
business and individuals in civil litigation. DRI is committed to addressing issues germane to
defense lawyers and the civil justice system and improving the civil justice system. Many of DRI’s
14,000 members include attorneys who regularly practice in the federal courts of appeals.
In addition, the Center for Law and Public Policy is DRI’s think tank and advocacy voice. The
Center’s Amicus Committee files almost a dozen amicus briefs each year in carefully selected
United States Supreme Court, state supreme courts, and federal and state appellate court cases that
present issues that are important to the civil justice system and to civil litigation defense attorneys
and their clients. DRI firmly believes amicus briefs can provide valuable information to appellate
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courts regarding the ramifications of their decisions, and context that may be important but not
addressed (or well addressed) by the parties.
Recommended Amendment Regarding Leave of Court for Nongovernmental Amicus
Briefs
On January 6, 2023, the DRI Center for Law and Public Policy wrote to recommend eliminating
the requirement of consent of the parties or court permission for the filing of nongovernmental
amicus curiae briefs, following the Supreme Court’s lead in revising Supreme Court Rule 37 to
eliminate parallel requirements in that court.
In announcing its rules change, which became effective on January 1, 2023, the Supreme Court
Clerk explained that “[w]hile the consent requirement may have served a useful gatekeeping
function in the past, it no longer does so, and compliance with the rule imposes unnecessary
burdens upon the litigants and the Court.”
The proposed amendments to FRAP 29(a), however, take the opposite approach—they propose to
eliminate the filing of amicus briefs on consent of the parties, and to require a motion and court
permission each and every time. For the reasons articulated by the Supreme Court when it revised
its Rule 37, the proposed amendments to Rule 29(a) are unnecessary and will be unhelpful to the
federal appellate courts.
Under current appellate practice, parties routinely consent to any and all amicus briefs as a matter
of good form and professionalism. In those rare instances where party consent is withheld, motions
for leave are almost never opposed and courts rule on them as routine matters. Because the
proposed amendments would require a motion and court permission for every amicus brief,
however, they invite a sea change in appellate practice with respect to amicus briefs. Parties may
well view the motion requirement—particularly in combination with the new “disfavored”
language in the proposed amendment to Rule 29(a)(2))—as an invitation to oppose amicus motions
regularly on the grounds that they are not sufficiently helpful to the court. Should this occur, the
courts will have to devote time and resources to deciding numerous contested motions about
whether a given amicus brief meets the standard of helpfulness enough to allow it to be filed,
instead of allowing the federal appellate courts to get to the heart of the matter—the merits of
appeals based on the merits of the arguments before it—whether presented by the parties or amici.
The proposed motion-and-permission mandate will not be beneficial to anyone: the courts, the
parties, or potential amici.
Moreover, the reasons given by the Advisory Committee for requiring court permission for every
amicus brief do not withstand scrutiny.
The first reason given by the Advisory Committee for rejecting the Supreme Court’s noconsent/no-motion approach is that—somehow—the Supreme Court requirement that amicus
briefs be filed in booklet form is a “modest filter” that justifies requiring motion practice for amicus
briefs in the federal appellate courts. The Advisory Committee does not further explain this
rationale, and the accuracy of this assertion most certainly is not self-evident. How is the filing of
an amicus brief in a printed booklet format the equivalent of a mandatory motion-and-permission
requirement in the federal appellate courts? The Advisory Committee does not say.
-2-
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The second reason given by the Advisory Committee for rejecting the Supreme Court’s noconsent/no-motion approach and requiring advance court permission is the stated purpose of
protecting federal appellate judges from needing to recuse themselves following the filing of an
amicus curiae brief that results in a conflict. But requiring advance court consent is entirely
unnecessary for this purpose because Rule 29(a)(2) already authorizes a court of appeals to prohibit
or strike the filing of an amicus brief that would result in a judge’s disqualification.
The undercurrent of Advisory Committee’s mandatory court permission amendment is that amicus
briefs are bad or that there are too many of them, and thus barriers should be erected and costs
imposed to solve this problem. But timely, rules-compliant amicus briefs that do not replicate
party legal arguments enhance appellate decision-making and the judicial process by providing
federal appellate courts with additional arguments and broader perspectives on the legal questions
presented. Amicus briefs give organizations such as DRI a direct voice in appeals that present
legal questions that affect, or are important to, their members. Federal courthouse doors should
readily open to true friends of the court such as DRI. Accordingly, the proposed amendments that
would delete the filing-by-consent rule and mandate motion practice should be rejected, and DRI
urges the Advisory Committee to revisit the idea of adopting the Supreme Court’s no-consent/nomotion approach.
Recommended Amendments Regarding Disclosures
As a national voluntary bar organization, DRI, through its DRI Center for Law and Public Policy,
files amicus briefs on issues important to its members (civil litigation defense attorneys) and the
civil justice system. DRI does not solicit nor accept funds for the preparation of any amicus brief.
DRI members support the organization through yearly dues and, from those dues, its Amicus
Committee is given a small, yearly budget allotment that it must then manage by carefully
evaluating requests for amicus support and choosing only to file amicus briefs that it believes will
be most helpful to the courts and supportive of the interests of its membership.
Accordingly, to the extent certain of the proposed amendments add to Rule 29’s disclosure
requirements in the hope of ferreting out possible undisclosed financial support earmarked for
particular amicus briefs or presumed hidden identities behind organizations filing amicus briefs,
the DRI Center for Law and Public Policy has no position about the relative merits of the substance
of the proposed amended disclosure requirements.
The DRI Center for Law and Public Policy’s Amicus Committee, however, does have an interest
in ensuring that any disclosure requirements in Rule 29 are practical, straightforward, efficient,
and easy to comply with, so that its limited budget is not dissipated by needlessly complex and
impractical rules.
At present, Rule 29’s disclosure rules are indeed practical, straightforward, efficient, and easy to
comply with. Fed. R. App. P. 29(a)(4)(E) currently requires nongovernmental amici to provide:
[A] statement that indicates whether:
(i) a party’s counsel authored the brief in whole or in part;
-3-
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(ii) a party or a party’s counsel contributed money that was
intended to fund preparing or submitting the brief; and
(iii) a person—other than the amicus curiae, its members, or its
counsel—contributed money that was intended to fund preparing
or submitting the brief and, if so, identifies each such person;
In other words, at present, those interested in filing an amicus curiae brief can quickly find, in one
place, a short list of information that must be disclosed, and one set of easy instructions about how
to comply with the disclosure requirement.
The proposed amendments, by contrast, have multiple duplicative and additive disclosure
requirements spread across several subsections:
•
A proposed amendment that would make the newly mandatory motion for
permission to file an amicus brief also proposed a new motion disclosure
requirement (proposed Rule 29(a)(3)(C)), but to determine the content of the
required disclosures, that provision cross-references proposed Rules
29(a)(4)(A), (b), (c), and (e);
•
The amicus brief that must accompany the motion also must have disclosures
as specified in proposed Rule 29(a)(4)(F), but that provision again crossreferences proposed Rules 29(b), (c), and (e);
•
Turning to proposed Rule 29(b), (c), and (e) these require an amicus brief to
include a statement with the traditional disclosures (such as whether a party
or its counsel authored the brief in whole or in part), but also additional
somewhat duplicative and overlapping disclosures about financial support
earmarked for the brief; influence over the entity submitting the brief; and
relationships to certain parties and nonparties;
•
Then, swinging back to Rule 29(a)(4) (D) and (E), these proposed
amendments contain yet more disclosure requirements that must go in the
amicus brief, such as statements about the history, experience, and interests of
the amicus curiae, and the date the amicus entity was created if in existence
for less than 12 months.
There is no discernable reason for amendments that disperse all these new disclosure requirements
throughout Rule 29. As a practical matter, all disclosure requirements should be straightforward,
better organized, and centrally located within Rule 29 so that those interested in participating as
amici can readily comply with the requirements and provide the information the Advisory
Committee believes should be disclosed.
Respectfully submitted,
/s/ Lisa M. Baird
Lisa M. Baird, Chair
DRI Center for Law and Public Policy Amicus Committee
-4-
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TAB 9
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January 29, 2025
Honorable John D. Bates
Chair, Committee on Rules of Practice and Procedure
Administrative Office of the United States Courts
One Columbus Circle Northeast
Washington, District of Columbia 20544
Dear Judge Bates:
My name is Thomas Berry, and I am the director of the Cato Institute’s Robert A. Levy
Center for Constitutional Studies. I am submitting written testimony now, and I will also be
submitting a comment on the proposed amendments within the next few days.
I urge the Committee not to adopt the proposed amendments. I agree entirely with the First
Amendment and donor privacy concerns that have been ably addressed in others’
comments. I would like to focus on the proposed requirement that all nongovernmental
amicus filers in the federal appellate courts must receive leave of court. Other commenters
have noted that this would add significantly to the federal appellate workload, forcing
federal judges to read and rule on motions for leave to file when their time is better spent
on other matters. My testimony will focus on what this change would mean from the
perspective of a frequent amicus filer.
I direct Cato’s amicus program, which is one of the most active amicus filers in the federal
courts. We file roughly 60 amicus briefs per year in the federal courts, and I can
conservatively say that there are at least three times that many cases where we would file if
we had the resources and bandwidth. Drafting an amicus brief takes our shop at least a
month from start to finish, during which time a junior attorney works exclusively on that
case. I would estimate that each brief we file is the product of roughly 5 total weeks of
dedicated attorney work time, including the time that I and other more senior attorneys
spend editing and giving other guidance. Given the limited resources that all organizations
have, we must make hard choices about which cases we use our attorneys’ time on.
At present, we file roughly 20 percent of our federal briefs in the federal appellate courts
and nearly all of the rest in the Supreme Court (with an occasional brief in the federal
district courts). But if these proposed amendments took effect, we would have to seriously
reconsider whether it would make sense to continue attempting to file in the federal
appellate courts at all. If there were even a 1-in-4 chance that a brief we submitted in a
federal appellate court would be rejected at the motion to leave stage and thus not even
read, it would be difficult to justify dedicating significant resources to producing that brief.
Under the current Supreme Court rules, it is guaranteed that briefs submitted to the
Supreme Court will be accepted for filing. As a steward of Cato’s limited resources and our
attorneys’ limited time, it would be hard to justify gambling our time on producing an
Cato Institute • 1000 Massachusetts Ave., N.W. • Washington, D.C. 20001 • (202) 842-0200
Fax: (202) 842-3490 • www.cato.org
Appellate Rules Hearing on Proposed Amendments | February 14, 2025
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appellate amicus brief that might not even be accepted for filing when we could instead
spend that time producing a Supreme Court brief that would be guaranteed to be accepted.
Thus, I urge the Committee to consider a probable unintended consequence of this rule:
that it would likely incentivize amicus filers to focus even more on the Supreme Court than
they already do. And that is precisely the wrong direction for amicus filings to trend. From
my own experience as a federal appellate law clerk, I saw that even in difficult and
important cases, the federal appellate courts rarely receive amicus briefs. And when they
do, they are usually far less in quantity than the Supreme Court would receive in a case
asking the same question. If anything, the balance should be tilted toward encouraging the
dedication of more amicus resources to the federal appellate courts and less to the Supreme
Court. The federal appellate courts decide difficult and consequential cases every day, and
they usually do so without the benefit of amicus help.
I urge the Committee to look to the Supreme Court as an example of the better approach to
amicus briefs. Yes, it is more expensive to file amicus briefs at the Supreme Court than it is
in the federal appellate courts, due to printing costs. Nonetheless, the Supreme Court
routinely receives dozens of amicus briefs in its cases. If that were a distracting burden, the
Supreme Court would have presumably made it even harder to file amicus briefs. But
instead it did the opposite when it eliminated the consent-or-leave requirement for filing.
Put simply, if a high quantity of amicus briefs were a burden, the Supreme Court would be
the most urgently concerned with that burden as the court that receives by far the most
amicus briefs per case. It is telling that the Supreme Court has not seen a need to restrict
the number of amicus filings.
In my experience, when consent is denied and we are required to move for leave to file, our
motion mirrors very closely the summary of the argument of our brief itself. In practice, it
would be just as easy for a judge to read our summary of argument and decide whether to
read further. That is what judges have done in the past, and they should be allowed to
continue doing so without interposing an unnecessary motion stage.
Finally, I wish to note that the limited time and resources of amicus filers is itself a reason
why amicus briefs tend not to be overly duplicative. In my experience, major filers on the
same side of a case will check with each other to ensure that they are not repeating each
other. That is the smart thing to do when we all have limited time and resources. If there is
no unique angle to contribute in a case, I will not dedicate Cato’s resources to producing a
“me too” brief in that case. The rational interests of amicus filers largely serve to address
concerns of duplicative briefs. There is no need for a motion stage to try to enforce an
unpredictable rule against being overly duplicative.
Sincerely,
Thomas A. Berry
Director
Robert A. Levy Center for Constitutional Studies
Cato Institute
2 of 2
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TAB 10
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TAB 11
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ATLANTIC LEGAL FOUNDATION
Lawrence S. Ebner
Executive Vice President & General Counsel
1701 Pennsylvania Ave., NW, Suite 200, Washington, DC 20006
202-872-0011 (o) • lawrence.ebner@atlanticlegal.org
November 6, 2024
Uploaded to Rulemaking Docket
Hon. John D. Bates
Chair, Committee on Rules of Practice
and Procedure
Judicial Conference of the United States
One Columbus Circle, NE
Washington, DC 20544
Re: USC-RULES-AP-2024-0001
Dear Judge Bates:
On behalf of the Atlantic Legal Foundation, I am submitting these comments on
the proposed amendments to Federal Rule of Appellate Procedure 29. The Advisory
Committee on Appellate Rules has indicated that it “is particularly interested in receiving
comments on the proposal to eliminate the option to file an amicus brief on consent
during a court’s initial consideration of a case on the merits.” These comments focus on
that proposal, which we believe is both unwarranted and impractical, and should be
rejected.
By way of background, the Atlantic Legal Foundation (atlanticlegal.org) is a
nonprofit, nonpartisan, public interest law firm founded almost a half-century ago. We
are a frequent filer of amicus curiae briefs in the federal courts of appeals as well as in
the Supreme Court. Our amicus briefs address legal issues that align with one or more of
our six advocacy mission areas: individual liberty, free enterprise, property rights, limited
and responsible government, sound science in judicial and regulatory proceedings, and
effective education, including parental rights and school choice.
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We endeavor to foster the fundamental, judicially beneficial purpose of amicus
briefs, as well as comply with the rules governing their preparation and submission. In
particular, we strive to draft amicus briefs that enhance an appellate court’s perspective
on, and understanding of, the legal issues in a case, rather than duplicating the arguments
presented by the supported party, and to the extent possible, by other amici curiae. We
also believe that the federal rules should open the appellate process—and give a voice—
to all organizations and individuals with an interest in the legal questions presented by a
case. This can be accomplished only by rules that facilitate, not hinder, the filing of
amicus briefs. Requiring a motion for leave would undermine this objective by deterring
preparation and submission of worthwhile amicus briefs, in addition to unnecessarily
burdening appellate judges.
My Law360 essay, Requiring Leave To File Amicus Briefs Is a Bad Idea
(Apr. 4, 2024), discusses the practical problems and inevitable mischief that eliminating
filing-with-consent, and requiring a motion for leave, would engender in federal courts of
appeals. For example, requiring proposed amicus filers to demonstrate that the
arguments and information in their already-drafted amicus briefs are “helpful” may
encourage non-supported parties to oppose motions for leave in an effort to deprive
courts of appeals of amicus briefs that offer persuasive arguments and/or useful
information. Requiring a motion for leave also may motivate non-supported parties to
attack amicus filers and perhaps their counsel simply for seeking to serve as a friend of
the court.
Equally important, requiring a motion for leave would create uncertainty regarding
whether a proposed amicus brief will be accepted for filing—uncertainty that may deter
many nonprofit organizations such as the Atlantic Legal Foundation from investing their
limited resources in researching and drafting briefs that would be helpful to courts of
appeals.
The purported rationale offered by the Advisory Committee for the proposed
motion-for leave requirement—enabling circuit judges to reject the filing of amicus briefs
that would require their recusal—not only is a rare occurrence, but already is expressly
addressed by Rule 29(a)(2) (“a court of appeals may prohibit the filing of or may strike
an amicus brief that would result in a judge’s disqualification”). It is important to note
that the Code of Conduct that the Supreme Court’s Justices adopted in November 2023
states that “Neither the filing of a brief amicus curiae nor the participation of counsel for
amicus curiae requires a Justice’s disqualification.”
The current system works well: Except in unusual circumstances, litigating
parties’ appellate counsel routinely consent to the timely filing of amicus briefs; nonsupported parties, if they wish, can address amicus arguments in their own merits briefs
(which they typically decline to do); and the merits panel can afford a particular amicus
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brief whatever weight it deserves. Indeed, as the Atlantic Legal Foundation previously
has suggested to the Advisory Committee, if Rule 29 is to be amended at all, it should be
to adopt the Supreme Court’s enlightened approach of allowing timely, rules-compliant
amicus briefs to be filed without having to obtain the court’s permission or even the
parties’ consent. See Sup. Ct. R. 37, as amended Jan. 1, 2023.
Thank you for your consideration.
Sincerely,
/s/Lawrence S. Ebner
Lawrence S. Ebner
Executive Vice President & General Counsel
Atlantic Legal Foundation
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TAB 12
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No written testimony outline or comment
was submitted by the requested January 29, 2025
deadline.
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TAB 13
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No written testimony outline or comment
was submitted by the requested January 29, 2025
deadline.
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TAB 14
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CTlie.
Hetitage Foundation
214 Massachusetts Avenue, NE
Washington, DC 20002
(202) 546-4400
heritage.org
January 28, 2025
The Honorable John D. Bates
Chair, Committee on Rules of Practice and Procedure
Judicial Conference of the United States
Washington, D.C. 20544
Dear Judge Bates:
We write to express our opposition to the proposed amendments to Federal
Rule of Appellate Procedure 29-particularly the new and onerous disclosure
regime for those who file amicus curiae briefs. These amendments have no practical
justifications and likely violate the First Amendment to the U.S. Constitution.
Problematically, as the Advisory Committee and Amicus Subcommittee repeatedly
conceded, the amendments are grounded in the notion that judges decide issues
based not solely on the law and the facts before them, but instead (at least
sometimes) decide issues based on the identity of the individual making an
argument or the identity of those associated with that individual. That is wrongboth morally and legally. Judges must decide each case solely on its merits. To do
otherwise violates judicial integrity and ethics. If adopted, the proposed rule
changes will seriously call into question the impartiality of the federal judiciary.
At bottom, this Committee appears to be proposing these amendments
because of politics. The Advisory Committee and Amicus Subcommittee repeatedly
invoked the unsubstantiated and partisan allegations Senator Sheldon Whitehouse
(D-RI) and Representative Hank Johnson (D-GA) have pushed in their critiques of
the supposed "dark money" network trying to influence the Supreme Court through
amicus briefs. Recognizing that they could not get their proposed "reforms" passed
through Congress, Whitehouse and Johnson shifted tactics and now seek to have
the Judicial Conference do their dirty work for them. Do not fall for their trap!
Adopting the proposed amendments would needlessly drag the federal
judiciary into a partisan political battle. For an in-depth discussion of the purposes
and practices associated with amicus briefs, as well as the many practical and
constitutional flaws with the proposed amendments, we have attached a recent
legal memorandum we authored. But its conclusions can easily be summarized: the
proposed amendments are unnecessary, are constitutionally questionable, and
would undermine the federal judiciary's integrity and impartiality. We therefore
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'Tlie.
Hetitage Foundation
214 Massachusetts Avenue, NE
Washington, DC 20002
(202) 546-4400
heritage.org
respectfully urge this Committee to withdraw the proposed amendments to Federal
Rule of Appellate Procedure 29.
•
Sincerely,
enior Legal Fellow and
Manager, Supreme Court and
Appellate Advocacy Program,
Edwin Meese III Center for
Legal and Judicial Studies
Seth J . Lucas
Senior Research Associate,
Edwin Meese III Center for
Legal and Judicial Studies
Enclosure:
ZACK SMITH & SETH LUCAS, LEGAL MEM. No. 371, IT'S A TRAP! A (LIKELY
UNCONSTITUTIONAL) SOLUTION IN SEARCH OF A PROBLEM: APARTISAN PUSH
FOR UNNEEDED AMICUS DISCLOSURE RULES (Jan. 24, 2025),
h ttps ://www .heritage.org/the-consti tution/report/its-trap-likelyunconsti tutional-sol ution-search-pro blem-partisan-push.
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LEGAL MEMORANDUM
No. 371 | January 24, 2025
EDWIN MEESE III CENTER FOR LEGAL & JUDICIAL STUDIES
It’s a Trap! A (Likely Unconstitutional)
Solution in Search of a Problem:
A Partisan Push for Unneeded
Amicus Disclosure Rules
Zack Smith and Seth Lucas
KEY TAKEAWAYS
Amicus briefs are used by progressives,
conservatives, industries, activists, and
others who want to have a voice in our
judicial system.
The notion that judges should refuse to
consider an argument because it might
advance certain disfavored interests is
incompatible with judicial integrity.
Judges should recognize that attempts
to convince them otherwise are nothing
more than a trap.
Introduction
As Admiral Akbar sailed the Rebel Fleet into what
was supposed to be a surprise attack on the Death Star,
he realized just in time that he had been tricked and
lured into an unfavorable fighting position. In shock,
he famously exclaimed: “It’s a trap!”1
So too today are demands for more strident disclosure requirements for those who file amicus curiae
briefs in the federal court system. Since Roman times,
the amicus curiae—Latin for “friend of the court”—has
played a variety of roles in Western legal systems. In
the United States, the amicus brief has become a
means for groups interested in a case’s outcome to
provide additional perspectives, information, or arguments. Amicus briefs are widely used by progressives,
conservatives, industries, activists, and others who
want to have a voice in our judicial system.
This paper, in its entirety, can be found at https://report.heritage.org/lm371
The Heritage Foundation | 214 Massachusetts Avenue, NE | Washington, DC 20002 | (202) 546-4400 | heritage.org
Nothing written here is to be construed as necessarily reflecting the views of The Heritage Foundation or as an attempt to aid or hinder the passage of any bill before Congress.
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Lately, however, the amicus curiae has come under attack. Decrying
recent judicial decisions with which they disagree, Senator Sheldon Whitehouse (D–RI), Representative Hank Johnson (D–GA), and others have
insinuated without proof that these decisions were influenced by amicus
curiae who, entangled in clandestine networks of dark money, are engaged
in sinister efforts to manipulate the federal judiciary. The solution, they
argue, is onerous disclosure and reporting requirements that expose every
detail of an amicus’s associations.
These proposals do not spring from a pure-hearted concern for good
government and the judiciary’s integrity. Instead, they are part of a broader
partisan effort to undermine public confidence in the courts and harm perceived political enemies. Because of the obvious partisan politics at play,
Whitehouse’s and Johnson’s ideas have gained little traction in the halls of
Congress. So they have turned elsewhere. They have now asked the Judicial
Conference of the United States—the governing body of the federal judiciary—to do their dirty work for them and enact via rule changes what they
could not get Congress to enact.
Sadly, the Judicial Conference has fallen into their trap. Acquiescing to
Whitehouse’s and Johnson’s demands, it has spent over three years studying and recommending changes in the current amicus disclosure regime
in the lower federal courts. Now it has proposed rules that open the door
for intense scrutiny of every dollar going to an amicus and every person
or group with which an amicus associates—scrutiny that likely will have a
chilling effect on the willingness of amici to file briefs. But unlike the Rebel
Fleet, the Judicial Conference is chasing only the illusion of a Death Star.
Not only do Whitehouse’s and Johnson’s proposed disclosures—and the
proposed Judicial Conference rules changes inspired by them—suffer from
constitutional and practical concerns, but they are also fundamentally a
solution in search of a problem.
At the end of the day, Whitehouse and Johnson have placed themselves
in a win-win position politically while placing the Judicial Conference in
a lose-lose situation. If the proposed disclosure rule changes are adopted,
Whitehouse and Johnson can declare political victory. If not, Whitehouse
and Johnson can yet again rail against what they portray as a corrupt cabal
of federal judges. Similarly, if the proposed rule changes are adopted, the
Judicial Conference will have signed off on a constitutionally problematic
solution to a nonexistent problem and needlessly injected the federal judiciary into partisan politics.
None of that needs to happen. The Judicial Conference can minimize the
damage by stopping the train now and refusing to adopt the proposed rule
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changes. To that end, this Legal Memorandum proceeds in four parts. The
first reviews the role and evolution of the amicus curiae in our legal system
and outlines the background of the current system against which Whitehouse and Johnson rage. The second discusses the current controversy
around amicus disclosure rules both at the U.S. Supreme Court and within
the lower federal courts and explains Whitehouse’s and Johnson’s failed
efforts in Congress to change the current disclosure regime legislatively.
The third outlines the Judicial Conference Rules Committee’s specific proposal, and the fourth assesses the constitutional and practical concerns
raised by those proposals.
The Role of the Amicus Curiae
History of the Amicus Curiae. Dating back to Roman times,2 the
amicus curiae has played a variety of roles throughout its history. Initially,
the amicus curiae was seen as a disinterested bystander seeking to assist
the court with information on relevant law or facts. In the United States,
the amicus curiae emerged originally as an advocate for unrepresented
interests, especially the interests of third parties. Today, at least at the U.S.
Supreme Court, a new phenomenon has emerged: skilled advocates facilitating amicus participation to signal noteworthy petitions for certiorari
and provide a curated and coherent body of perspectives to aid the Court
in deciding a case.
Originally, the amicus curiae—Latin for “friend of the court”3—was
viewed as a disinterested third party who sought to aid a court by proffering
helpful information on law or facts relevant to a case.4 One vintage dictionary explained that “[w]hen a judge is doubtful or mistaken in matter of law,
a bystander may inform the court thereof as amicus curiae,”5 which could
be done, for example, by pointing to a case the court had not considered or
of which it was unaware. Another explained that the “friend of the court” is
“a bystander, who without having an interest in the cause,” provides helpful
information “on a point of law or of fact.”6 In an early example involving
a case where the meaning of a particular statute was disputed, a member
of Parliament who had been present when the statute was passed sought
to inform the court of Parliament’s intent.7 In 1606, two amici earned a
sharp rebuke for failing to “perform[] the office of a good friend or of a good
informer” by omitting a clause from an Act of Parliament.8
Despite its professed disinterestedness, the role of amicus curiae also
provided an avenue for third parties with an interest at stake in a case to
participate in the case.9 Common law systems in particular disfavored
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third-party involvement in trials.10 But in another early case, the amicus
curiae represented the interest of a third party whose marital status would
have been challenged by the suit, leading to exposure of the suit as collusive.11
The role of the amicus curiae as a friend of the court and as representative
of a third party thus overlapped.12 In light of such examples, at least one
scholar has argued that the amicus curiae role may have been a solution
to the problem of representation of third parties in adversarial disputes.13
In the U.S. Supreme Court, the amicus curiae role developed early on
as a device for advancing third-party interests.14 In Green v. Biddle, a dispute over land holdings in Kentucky to which Kentucky was not a party,
Kentucky instructed Henry Clay to appear as an amicus curiae and seek
rehearing after the Supreme Court’s decision in the case.15 The Court first
allowed the motion, granted it, and then later allowed Clay to argue the
case.16 Three decades later, the Court allowed the U.S. Attorney General to
participate as an amicus curiae in Florida v. Georgia to speak on the public
interests involved.17 And in 1864, California’s Attorney General filed a brief
in a suit where the constitutionality of a California statute was at issue.18 For
a time, the Court also allowed third parties with cases pending elsewhere—
or who were involved below but had not joined the appeal—to participate
as amicus curiae or intervenors “depending on the situation and requests
of the litigants or agreements of the counsel.”19
A shift in the role of amicus curiae began to emerge in the early 1900s.
Throughout the late 1800s and for the first decades of the 1900s, the authoring attorneys were seen and identified as the amicus curiae.20 By the 1930s,
however, this was replaced with identification of the sponsor of the brief
as the amicus curiae.21 Not only that, but amicus briefs became a tool to
drive social and policy objectives. Under the leadership of Attorney General Charles Bonaparte, the Department of Justice increasingly sought to
advance social change and public policies through amicus briefs. Increasingly, regulated industries, racial minorities, and organizations like the
National Association for the Advancement of Colored People (NAACP) and
American Civil Liberties Union (ACLU) also began to rely on the amicus
brief to advance their interests as well as broader public interest goals.22
As the number of amicus briefs rose, the Supreme Court began to implement formal rules. In 1937, the Court formalized what was then common
practice by requiring amici to obtain consent from the parties to file a brief
or, if consent was denied, leave of the Court.23 In 1949, the Court further
expounded on these procedures, explaining that motions for leave to file
were “not favored.”24 Subsequently, leave was granted less often, and the
Solicitor General began to routinely deny consent.25 Amicus participation
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subsequently declined.26 In 1957, faced with criticism from the Court for
such rote denials, the Department of Justice clarified that it disfavored
amicus briefs with academic or propaganda interest but would grant consent where the proposed amicus “has a concrete, substantial interest in
the decision of the case” and sought to present “relevant arguments or
materials which would not otherwise be submitted.”27 The number of briefs
continued to rise, however, resulting in an 800 percent increase from the
1950s by the turn of the century and a 95 percent increase between 1995
and 2014.28 In the early 1900s, amicus briefs “were filed in only about 10%
of the Court’s cases”; by the end of the century, they were filed in nearly 85
percent of argued cases.29 In 2023, the Court eliminated the requirement
for consent from the parties.30
With the rise of the “Supreme Court Bar,” a new amicus curiae phenomenon has developed: the curation of amicus briefs to signal noteworthy
petitions for certiorari or collectively provide additional information or
perspectives not in a party’s briefing.31 As one article has explained:
Today, elite, top-notch lawyers help shape the Court’s docket by asking other
elite lawyers to file amicus briefs requesting that the Court hear their case.
When the Court grants certiorari (or “cert”), these very lawyers strategize
about which voices the Court should hear and they pair these groups with
other Supreme Court specialists to improve their chances with the Court.32
This curation of amici may take the form of an “amicus wrangler”—an amici
recruiter.33 But it may also take the form of an “amicus whisperer”—coordination of what briefs are filed, who joins those briefs, and what arguments
the briefs raise.34 In Hamdan v. Rumsfeld, for instance, Neal Katyal (who
argued the case for the petitioner) not only worked relentlessly to discourage briefs he thought would “blunt the impact” of stronger briefs, but also
arranged for David Remes (then with Covington & Burling) to oversee the
amici’s writing process so that the amici would stay on message.35 This
use of an “outside ‘amicus whisperer’” not only aids advocates in tracking
amici, scholars have since observed, but also ensures that “the person coordinating the amici message…has a lot more editing leeway without running
afoul” of Supreme Court Rule 27.6 regarding party authorship or funding
of amicus briefs.36
Amicus Curiae Influence in Theory and Practice. Scholars have
proffered three theories about the impact of amicus briefs in courts. The
first, the informational theory, views judges as “seeking to resolve cases in
accordance with the requirements of the law” and thus views amicus briefs
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as helpful when they contain new legal arguments or factual information.37
The second, the attitudinal model, assumes that judges have “fixed ideological preferences” and rely on legal norms “only to rationalize outcomes
after the fact.”38 In this model, amicus briefs that merely offer additional
information are of little help to the judge.39 Under the third model, the
public interest or affected groups theory, amicus briefs are more akin to
lobbyists or a public opinion barometer.40 Both the fact that the brief was
filed and the identities of the amici are important data points apart from the
contents of the brief.41 Amicus briefs under this third model are helpful to a
judge insofar as they signal how interested groups want the case decided.42
As explained below, however, this third theory is not valid—yet it appears
to be the one adopted by the Judicial Conference.
Available data reveal that the role of amicus briefs is in reality complex. Across the federal judiciary, government amici are generally viewed
as particularly helpful.43 Similarly, “special interest groups are generally
well regarded as amici curiae,” but some scholars surmise that the value
the Supreme Court places on the brief varies with a group’s reputation for
quality arguments and “the extent of their interest in the issue.”44 A majority of judges in one survey found a litigant’s and amicus curiae’s financial
relationship “relevant to consideration of a proposed brief.”45 A majority
of judges in the same survey viewed briefs offering new legal arguments or
insights into the material impacts of a particular outcome on the amicus
curiae’s interest as “moderately or very helpful.”46
The Supreme Court appears to view new relevant information absent
from parties’ briefing or the record as more helpful than lower courts do.47
Slight majorities of judges affirmed that “the identity, prestige, or experience of the amicus” are “moderately or significantly influential.”48 But
a survey of former Supreme Court clerks indicates that, at least at the
high court, an amicus’s identity or its counsel can serve as a heuristic for
a presumption of the brief’s quality.49 The number of amicus briefs filed,
however, appears to have little impact on a case’s outcome except in narrow
circumstances.50
The data are unclear as to exactly why some judges find relevant the
parties’ financial relationship to an amicus and the amicus’s or its counsel’s
identity. If they are in fact playing identity politics and discounting a brief
based solely on the identities of individuals or organizations with which the
amicus is associated—as the Judicial Conference’s rationale for its proposed
rules suggests judges should do—those judges are likely violating judicial
ethics and disregarding basic principles of justice. If they are considering
those things to see whether the parties and an amicus are complying with
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existing procedural rules, they are acting safely in their judicial role—but
this means that the proposed rule changes are not needed. If what occurs
at the Supreme Court is representative of anything, however, it suggests
that the identity of an amicus or its counsel is a heuristic for the quality of
arguments the judge or a clerk can expect in a brief. As former Justice Ruth
Bader Ginsburg remarked, in her view, an attorney’s experience “would be
a likely barometer of the quality of arguments” in the brief.51
Thus, these and other data suggest that the informational theory more
accurately, even if not fully, explains the impact of amicus briefs in the
courts. As Professors Joseph Kearney and Thomas Merrill explain in the
context of their 50-year survey of cases argued at the Supreme Court:
Contrary to what the attitudinal model would predict, amicus briefs do appear
to affect success rates in a variety of contexts. And contrary to what the interest group model would predict, we find no evidence to support the proposition that large disparities of amicus support for one side relative to the other
side result in a greater likelihood of success for the supported party. In fact, it
appears that amicus briefs filed by institutional litigants and by experienced
lawyers—filers that have a better idea of what kind of information is useful
to the Court—are generally more successful than are briefs filed by irregular
litigants and less experienced lawyers. This is consistent with the legal model’s prediction that amicus briefs have an influence to the extent they import
valuable new information.52
In sum, although the identity of an amicus or its counsel may serve as a
heuristic of the brief’s quality, the value of the brief is—and should be—
determined by the brief’s quality and contents.
Current Controversy and Efforts by
Whitehouse and Johnson
In recent years, some have questioned the usefulness and appropriateness of amicus briefs. Senator Whitehouse in particular has been a vocal
critic of current practices—decrying the “flotillas of amicus briefs” that in
his view amount to nothing more than inappropriate judicial lobbying.53
He has asserted that “[a]nonymously funded, coordinated amicus efforts
are just one component of a larger strategy to capture the federal judiciary
for the benefit of a self-interested donor class and for Republican Party
electoral interests.”54 He has advanced this partisan view despite the fact
that one of the principal media reports he cited to support this proposition
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admits that in the seven cases it reviewed, “the conservative parties had
[only] a slight advantage, accounting for 50 percent of the amici curiae,”
while “46 percent [of amici filed in] support of the liberal parties and about
4 percent filed in support of neither party.”55 Nonetheless, Whitehouse has
pursued changes in amicus disclosure rules as part of his larger institutional
assault on the U.S. Supreme Court.56 Representative Hank Johnson has
joined him as a prominent proponent of those efforts.57
AMICUS Act. One notable effort has been Whitehouse’s and Johnson’s
endeavor to impose onerous disclosure requirements on those who wish
to file amicus briefs. In 2019, Whitehouse first introduced his Assessing
Monetary Influence in the Courts of the United States (AMICUS) Act,58
which he described as seeking “to address the problem of undisclosed judicial-branch lobbying by dark-money interests.”59 Johnson introduced an
identical companion bill in the House.60 Under the terms of his proposed
act, “any person, including any affiliate of the person, that files not fewer
than 3 total amicus briefs in any calendar year in the Supreme Court of the
United States and the courts of appeals of the United States” would have to
register with the Administrative Office of the United States Courts.61 Registration would have to occur within 45 days of triggering the registration
requirement (the filing of three amicus briefs), and the party would also
have to register on January 1 “of the calendar year after the calendar year
in which the amicus” submitted at least three briefs.62
The details that would have to be provided as part of this registration are
extensive and intrusive. As part of the registration, the amicus filer would
have to disclose its name, a general description of its business or activities,
and the names of anyone who contributed to the preparation or submission
of an amicus brief, the names of anyone who contributed at least 3 percent
of the gross annual revenue for the previous calendar year (if the amicus
is not an individual), and the names of anyone who contributed more than
$100,000 to the amicus in the previous year. Additionally, the registrant
would be required to include a statement of the general issue areas in which
the amicus expects to engage and “to the extent practicable, specific issues
that have, as of the date of the registration, already been addressed or are
likely to be addressed in the amicus activities of the registrant.”63 The act
would also require the Administrative Office of the U.S. Courts to make this
information publicly available indefinitely on its website.64 Anyone who
knowingly failed to comply with these onerous registration and disclosure
requirements would be subject to a civil fine of up to $200,000.
The Judicial Conference and Its Rulemaking Process. Whitehouse
and Johnson are politicians. They know that their radical proposals have
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little chance of passing either the Senate or the House as those bodies are
currently composed. So they changed tack and decided to bully the judiciary
into doing their dirty work for them. Essentially, they want the Judicial
Conference of the United States (the judicial body responsible for making
policy recommendations to the federal judiciary—including proposed rule
changes) to adopt many, if not most or all, of their radical proposals.
By way of background, Congress created the Judicial Conference’s
predecessor organization in 1922 at the behest of then-Chief Justice William Howard Taft. Taft came to the position of Chief Justice after holding
numerous executive positions—including the position of Chief Executive
(President) of the United States—and sought to professionalize and optimize the administrative apparatus behind the federal courts. At his urging,
Congress established the Conference of Senior Circuit Judges. “With the
chief justice presiding, the senior judge (now known as chief judge) of each
circuit court of appeals gathered to report on the judicial business of the
federal courts and to advise Congress on possible improvements in judicial
administration.”65 Eventually, with some changes in composition, this body
expanded its responsibilities and became known as the Judicial Conference of the United States.66 Included among its many responsibilities is a
mandate to consider changes to the procedural rules governing litigation in
federal courts. It does this by dividing and subdividing its work among various committees and subcommittees related to specific issue areas. Relevant
to this issue, Whitehouse and Johnson have pressured the Committee on
Rules of Practice and Procedure and its Advisory Committee on Appellate
Rules to adopt their proposals.
This is a win-win maneuver for Whitehouse and Johnson. If the Judicial Conference adopts their policies, they keep their hands clean while
chilling many of their perceived opponents who might want to weigh in on
important cases. If it does not, Whitehouse and Johnson can continue to
rail against the alleged capture and corruption of the federal judiciary, of
which the Judicial Conference is a part.67
Rules Committee Response and Proposals
Amicus participation in federal courts of appeals is governed by Rule 29
of the Federal Rules of Appellate Procedure.68 If the court is considering a
case on the merits, an amicus seeking to file a brief in that case must disclose
(1) its identity, (2) its interest in the case, (3) why its brief “is desirable” and
“relevant,” (4) certain corporate affiliations if the amicus is a corporation, (5)
whether a party in the case or a party’s counsel authored or directly funded
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the brief, and (6) the identity of any person who directly funded a brief.69
Rule 29 does not require disclosure if the person who funded the brief is
the amicus, a member of the amicus, or the amicus’s counsel.70
In October 2019, at a meeting of the Judicial Conference’s Advisory
Committee on the Appellate Rules, Judge Michael Chagares of the U.S.
Court of Appeals for the Third Circuit initiated a discussion on Senator
Whitehouse’s AMICUS Act.71 The ensuing discussion quickly noted that
while current rules focus on direct funding of briefs, the proposed legislation would require certain amici to disclose their own sources of funding.72
Questioning which organizations this could affect and noting that the bill
could move through Congress quickly, the Committee members agreed
to appoint a subcommittee “to deal with amicus disclosures.”73 In April
2020, the subcommittee reported that because the bill was not moving, no
action appeared necessary other than additional research into who would
be affected by its provisions.74
In September 2020, Scott Harris, Clerk of the U.S. Supreme Court, wrote
to the Judicial Conference’s Committee on Rules of Practice and Procedure
about Rule 29.75 Harris noted that the Court received a letter from Senator
Whitehouse and Representative Johnson regarding disclosure requirements for amicus curiae briefs at the Court.76 Harris then suggested that
“in light of the similarity” between Supreme Court Rule 37.6 and Appellate
Rule 29(a)(4)(e), both of which govern disclosure of the identity of whoever
contributed money to fund a brief, the Committee “may wish to consider
whether an amendment to Rule 29 is in order.”77 Harris further emphasized
that “[t]he Committee’s consideration would provide helpful guidance on
whether an amendment to Supreme Court Rule 37.6 would be appropriate.”78
He did not say whether the Chief Justice—or any Justice for that matter—
was involved or even interested in the question, though the Chief Justice
does serve as head of the Judicial Conference.
In February 2021, after learning from Harris that he referred their
letter to the Committee, Senator Whitehouse and Representative Johnson directly asked the Committee “to address the problem of inadequate
funding disclosure requirements” for amicus briefs.79 In their view, parties,
amicus groups, and their funders had “exploited” the current rules “to exert
anonymous influence” on the courts, “compromising judicial independence
and the public perception thereof.”80 The letter cited four primary examples of such perceived exploitation: (1) donations by Google and Oracle to
groups that participated as amici in Google LLC v. Oracle American Inc.;81
(2) a foundation that funded both 11 organizations that filed amicus briefs
and a law firm representing a party in Friedrichs v. California Teachers
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Association;82 (3) a funder who financially supported the Federalist Society
as well as 13 amici in Seila Law LLC v. CFPB,83 and (4) the U.S. Chamber of
Commerce, which does not disclose either its members or “who is influencing the positions the Chamber takes in litigation.”84 The letter, as well
as an attached article by Senator Whitehouse, argued that “wealthy and
sophisticated players have exploited” the Supreme Court’s rules to create “a
massive, anonymous judicial lobbying program.”85 The letter did not assess
whether the appellate rules governing conduct in the courts of appeals were
similarly exploited,86 but it did threaten that “a legislative solution may be
in order to ensure much-needed transparency around judicial lobbying.”87
Shortly thereafter, citing Harris’s letter while denying that it acted
under pressure, the Advisory Committee began to consider potential
additional disclosure requirements.88 The Committee pushed back on
the idea that amicus briefs are like lobbying, noting that they are public
and lobbying is done in private.89 It also emphasized that neither public
registration nor fines fall within the scope of the rulemaking process.90
The Committee noted concerns, however, that parties could use amicus
briefs that falsely appeared to be independent as a way to evade page
limits—even though the current rule already addresses this problem.91
Worrying about “the influence of ‘dark money’ on the amicus process,” the
Committee also noted other concerns that someone “with deep pockets
can fund multiple amicus briefs and give the misleading impression of a
broad consensus.”92
On the other hand, the Committee also admitted that the First Amendment does allow anonymous speech.93 Considering the then-recent decision
in Americans for Prosperity v. Bonta, the Committee argued that the California law at issue there was different from amicus disclosures in four ways.94
l
l
l
California’s law and Rule 29 target different activities, and “[t]here
can be little doubt” that more can be required of amicus filers than is
required of charitable organizations generally.95
Rule 29 and its Supreme Court counterpart already required disclosure of the identities of those who make direct contributions to fund
a brief, and “[p]resumptively, the Court viewed those requirements as
constitutional when it imposed them.”96
Rule 29 disclosures are already public, while California’s mandated
disclosures were meant to be confidential.97
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Rule 29’s current 10 percent ownership and contribution disclosure
threshold is higher than California’s 2 percent or $5,000 disclosure threshold.98
Although the Subcommittee and the Advisory Committee initially considered requiring additional disclosures of who funds an amicus, members
settled for additional disclosures solely regarding an amicus’s identity,
interests, and financial relationship to a party.99 The Amicus Disclosure
Subcommittee explained that “little if any support” existed for requiring
disclosure of funding from nonparties not earmarked for a particular amicus
brief.100 One member also suggested holding the idea for “coordinat[ion]
with disclosure of third-party litigation funding.”101 Regarding additional
disclosures, the Subcommittee noted that requiring additional information on an amicus’s identity and interests would aid the court and public in
better evaluating how helpful a brief could be.102 Similarly, it argued, certain
levels of financial support by a party, such as majority ownership or control,
would indicate that an amicus is not a “broad-based amicus.”103 Moreover,
by requiring disclosure of members of an amicus who joined the amicus
within the past year and then donated funds directly for an amicus brief,
the draft rule would close an opportunity for parties to evade disclosure.104
Members repeatedly recognized, however, that no clear problem existed
at the appellate level. Judge John Bates of the U.S. District Court for the
District of Columbia and Ms. Danielle Spinelli both underscored that they
had been “asked by the Supreme Court” to address the issue.105 Ms. Spinelli argued that the Committee consequently “should be reluctant” to
say that no problem existed and do nothing.106 When pressed for examples,
she emphasized “legitimate concerns about evasion and transparency” as
well as “anecdotal evidence in the Supreme Court.”107 One member asked,
without receiving a direct answer, whether judges were in fact misled
“in a significant number of cases” about the identity of amici.108 Another
remarked that “[t]here may not be an actual problem without party behavior,” even though broad agreement existed “that we should know if it does
happen; there may be more of an issue with nonparty behavior, but less
agreement about what to do about it.”109 Other members remarked that in
their view, no problem exists.110
Nonetheless, the Advisory Committee forged ahead. In May 2024, the
Committee distributed its final draft of the proposed amendments, which it
published for public comment in August 2024. Among other changes, such
as the word limit for amicus briefs, the amendments would impose four
new requirements.111
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Amici other than the United States, an officer or agency of the United
States, or a state must seek permission from the appeals court to
file a brief.
An amicus would need to disclose additional information about itself,
such as its history and experience.
An amicus would need to disclose whether a party or a party’s counsel
(1) has a majority interest in or majority control of the amicus or (2)
contributed 25 percent or more of the amicus’s revenue in the 12
months before the brief was filed.
The amicus would need to reveal whether a person contributed $100
or more to fund the brief in the 12 months before the brief was filed
unless the person was a member of the amicus for more than 12
months or if the amicus existed for less than 12 months (which, if so,
the amicus must also disclose).
The Advisory Committee also laid out its final reasoning for the proposed
amendments. Most of that reasoning focused on justifying the proposed
disclosure requirements. Tellingly, however, the Committee hinged its
arguments on the rather novel claim that the proposed disclosure requirements are just like campaign finance laws.112 The disclosures, it explained,
would help judges to “evaluate the submissions of those who seek to persuade them, in a way that is analogous to campaign finance disclosures
that help voters evaluate those who seek to persuade them.”113 Carrying
this theme forward, the Committee argued that disclosures would reveal
whether an amicus “may be sufficiently susceptible to” a party’s influence
and that “[k]nowing who made a contribution that was earmarked for a
brief provides information to evaluate that brief in a way analogous to the
way that knowing who made a contribution to a candidate helps evaluate
that candidate.”114 It further added that “views expressed in the amicus
brief might be disproportionately shaped by the interests of that contributor” to the point that the brief functions “simply as a paid mouthpiece.”
Moreover, the Committee explained, the proposed amendments treat a
new member of an amicus as a nonmember because someone could otherwise simply join an amicus as a way to underwrite a brief anonymously.115
At bottom, the Committee concluded, because an amicus “does not have a
right to be heard in court” and can speak elsewhere if it wishes, any burden
the new rules might impose would be minimal.116
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Assessing Current Reform Proposals
In light of the fact that this entire episode is, as noted, likely nothing
more than a solution in search of a problem, the apparent constitutional
and practical problems presented by the proposed solutions glare even
more brightly.
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Practical Concerns. Additional disclosures are unnecessary. Recent
challenges to the Supreme Court’s amicus disclosure requirements
as inadequate are rooted in policy disagreement with the Court’s
decisions and the belief that the Court should consider or discount
arguments based on the identity of groups before it.117 Pressure to
adopt more sweeping disclosure requirements throughout the judiciary arises from unfounded concerns that individuals or groups are
misleading courts with amicus briefs that veil hidden interests or
create an illusion of broad support for certain outcomes. Neither Senator Whitehouse nor the committee members raised a single example
of an undisclosed relationship between an amicus and another party
that threatened the judiciary’s integrity. With only one exception,118
the examples of alleged abuses that Senator Whitehouse provided
were of donors who gave money both to amici and to someone else
who advocated for positions he disfavored. Such financial relationships are not problematic unless judges should decide cases based on
the identity of who is on each side, which would upend judicial impartiality and undermine public trust.
Additional disclosure requirements are unnecessary from a
practical perspective. As committee members repeatedly noted, no
clear problem actually exists. As an initial matter, the sweeping disclosures created by the Committee and pushed by Senator Whitehouse
are not widespread. The Supreme Court lacks such requirements,119
and no similar requirement is common in state courts. On the contrary,
many states’ rules for amicus participation require disclosures largely
paralleling those required by Appellate Rule 29.120
But aside from the lack of parallels, no evidence that parties are
exploiting Rule 29—even occasionally—was ever presented by Senator
Whitehouse, the Amicus Subcommittee, or the Advisory Committee.
Senator Whitehouse’s examples were generally of third parties that
funded organizations that in turn became involved in litigation as
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parties, counsel for a party, or amici. Only one example, in which
Google and Oracle donated to eventual amici, showed a party relationship with amici. None revealed party control of an amicus, however.
Similarly, throughout discussions about potential revisions in Rule
29, no Subcommittee or Advisory Committee member raised a single
example of a party controlling or even unduly influencing an amicus.
Members instead referenced only concerns—which they failed to
support with instances of problematic amicus curiae behavior.
Consequently, it is not clear that the rules will stop or reveal any
problematic behavior. A party truly committed to financially controlling amici will simply change its practices to evade disclosure
under a modified Rule 29.121 If the proposed changes are adopted, a
judge who suspects that an amici’s disclosure is insufficient, misleading, or outright false will still need to seek additional information. But
a judge already has the power to remedy a Rule 29 violation, including
by striking the noncompliant brief. Moreover, the additional burdens
of disclosure, as well as the risk of nonparticipation, created by the
proposed amendments are not counterbalanced by resolution of an
actual problem.
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Discouraging coordination of amicus briefs—including by
parties—disserves judicial decision-making. Coordination of
amicus briefs is increasingly common and is accomplished through
means other than financial control. The proposed amendments would
therefore do nothing to reduce the level of influence a party or third
party might have on the amicus process. Nor should they have such a
deterring influence. Coordination—including by a party—aids courts
by reducing duplicity and, when done by skilled advocates, by increasing the quality of the briefs.
Amicus coordination by other means is a normal practice in appellate
litigation, particularly at the Supreme Court. Evidence exists that
amici were coordinated in Roe v. Wade.122 Then-attorney Ruth Bader
Ginsburg “was known for her skill at coordinating amici when she was
litigating before the [Supreme] Court in the 1970s and 1980s.”123 Mary
Bonauto, Legal Director of Gay & Lesbian Advocates & Defenders,
coordinated amici in United States v. Windsor, as did supporters and
opponents of the Affordable Care Act in King v. Burwell and the ACLU
in Hobby Lobby.124 Indeed, Big Law advocates recognize the necessity
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of such coordination before the Supreme Court in particular—with
one advocate going so far as to recruit a confidant at Covington & Burling to micromanage and control amici’s collective message in Hamdan
v. Rumsfeld.125
Such coordination appears to be helpful, not harmful. Judges and
Justices alike have complained about repetitive “me too” briefs. Some
courts have even adopted rules requiring some measure of coordination to prevent overlap in substance. As Allison Larsen and Neal
Devins argue, at least at the Supreme Court, coordination of amicus
briefs by specialized practitioners can aid the court by presenting
information and perspectives that the practitioners know the Court
will find helpful in reaching a decision.126 The Justices themselves
have viewed this as ensuring that they will hear the best arguments.127
As Larsen and Devins further point out, the advocates engaged in
such litigation and coordination are responding to the signals sent by
the Justices in their opinions about what arguments would be most
persuasive to them.128 There is no reason to think that the situation is
different in the lower courts. In fact, a majority of lower court judges
have indicated that they find amicus briefs helpful when those briefs
offer unique legal arguments or explain the impact of a case on an
amicus’s interests. Coordination seems to be in the interest of judges
who want to hear those arguments—and as one member remarked,
such coordination is expected.
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The public and courts have no interest in knowing an amicus’s
financial sources, nor should they have such an interest. No
interest is served by mandating disclosure of an amicus’s financial
sources. The Committee was therefore right to drop the disclosure
provisions regarding third-party funding sources or financial control.
Unlike funds earmarked for a brief by donors who have an interest in
what the brief says and thus, in a sense, have interests represented by
the brief, general funding aims at advancing the overall mission of the
organization. The organization is thus empowered to advance interests shared by its funders. An organization that veils its actual mission
with an artificial one is already violating Rule 29 by lying to the court
about its interests.
Although disclosure of large funders of a specific amicus brief may
help to reveal what interests an amicus brief truly advances, and thus
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which interests may be impacted by the case, neither the public nor
judges have an interest in knowing who is funding an organization
generally. Under both dispute resolution theory and law declaration
theory of judicial decision-making, third parties whose interests are
affected by the outcome of a dispute are welcome to aid the court by
presenting arguments or information that further delineate the issue
so that the court can make an informed decision. That is, after all, the
fundamental purpose of the amicus curiae, whether in 17th century
England or 21st century America. Rules requiring disclosure of the
individuals or organizations directly involved with a brief can—but do
not necessarily—facilitate that role. An organization that is but a shell
for a hidden interest (for example, a pro-business organization masquerading as a consumer interest group) would flatly violate Rule 29 as
it currently exists if it created a false interest to cover its true interest.
There is, however, no problem with groups that share views on a legal
or policy issue partnering generally, including through funding, and
not disclosing those broader relationships when one or more file an
amicus brief. Disclosure of the identities of general funders advances
no public interest unless we want judges to make identity-based
decisions—which would violate the rule of law and undermine judicial
impartiality and fairness. Public trust of the judiciary does not depend
on who has access to the courthouse—though it should be open to
all. Nor does it depend on who makes certain arguments. Public trust
instead depends on judges deciding a case fairly without bias either for
or against any party.
Of course, we do not and should not want judges to approach the
bench as tabula rasas. Every judge will and should have a philosophy of
judging. But no one, living constitutionalist or textualist or otherwise,
would argue that the identity of the party making an argument should
determine whether the judge is or is not persuaded by that argument.
It is one thing to look at the identity of an amicus or its attorneys as
a heuristic for either the quality of the argument being made or the
interests the brief will seek to advance. It is another thing to discount a
brief’s arguments because of who is making them—or who empowered
the amicus, directly or indirectly, to make them.129 The former is a
technique for identifying good arguments; the latter injects identity
politics into the proceedings of a court that should be impartial.
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Rule 29 aims to ensure that third parties can aid judges in understanding the contours of a case. The informational interest of
politics—knowing who is trying to influence one’s vote and why—is
simply not present in the courts, nor should it be. In fact, with political
figures seeking to investigate private citizens for constitutionally
protected civic engagement,130 it may serve the public interest more
to veil rather than disclose amici’s funding sources. Public criticism
and the courage to face it are one thing, but violence by activists and
unjustified scrutiny and harassment by politicians and federal bureaucrats for engaging in constitutionally protected civic engagement are
another thing entirely. Anonymity is in the public interest in the latter
circumstances.
Constitutional Concerns. If that were not enough, the proposals also
suffer from constitutional concerns. Senator Whitehouse’s AMICUS Act
specifically provides that nothing in it should “be construed to prohibit
or interfere with” someone’s “right to petition the Government for the
redress of grievances,” “right to express a personal opinion,” or “right of
association, protected by the First Amendment of the Constitution of the
United States.”131 But it seems that Whitehouse “doth protest too much.”132
The provisions of the proposed act and the Supreme Court’s interpretation
of the First Amendment cannot be reconciled—and the same can be said of
the Rules Committee’s recent proposals.
Aware of the constitutional concerns, the Advisory Committee engaged
in a lengthy discourse about why, in its view, the proposed changes in Rule
29 pass constitutional muster.133 Its analysis is perplexing and unconvincing. As Senators Mitch McConnell (R–KY), John Thune (R–SD), and John
Cornyn (R–TX) pointed out, if the rule changes are implemented, it “will
be a sorry sight to see the judiciary haled into its own courts for violating
one of our most fundamental rights, but it will be necessary.”134
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Compelled disclosure is long disfavored under the First Amendment and Supreme Court precedent. Compelled disclosure issues
impinging on the First Amendment are nothing new. The Supreme
Court confronted them in earnest during the fight against segregation
and Jim Crow laws. In NAACP v. Alabama,135 one of the seminal cases
dealing with the issue, the Court held that the First Amendment
prohibited the Alabama Attorney General from requiring the NAACP
to turn over its membership lists. To put that demand in context, it
is important to remember that NAACP members faced “economic
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reprisals and violence” as a result of that organization’s opening “an
Alabama office that supported racial integration in higher education
and public transportation.”136 The Alabama Attorney General’s request
for the group’s membership lists was part of an effort to have a chilling
effect on the group’s activities. The Supreme Court later referred to
this as a First Amendment “chilling effect in its starkest form.”137
The Court subsequently addressed compelled disclosure issues primarily in the context of lobbying and campaign finance–related cases.
In Buckley v. Valeo, the Court upheld the disclosure regime in the
Federal Election Campaign Act, noting that three governmental interests could justify it: (1) providing voters with information to inform
their choices, (2) deterring actual corruption or even the appearance
of corruption, and (3) providing information needed to detect and
investigate violations of the law.138
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Proposals fail to meet the exacting scrutiny test. The Supreme
Court most recently addressed First Amendment concerns regarding compelled disclosures in Americans for Prosperity Foundation
v. Bonta.139 The California Attorney General had sought to require
charitable organizations within the state to disclose the identities of
their major donors by turning over certain tax documents. Several of
these organizations objected and filed suit, arguing that this violated
their First Amendment rights to associate freely with others. In a sixto-three decision, the U.S. Supreme Court agreed. Chief Justice John
Roberts, writing for the majority, explained that “each governmental
demand for disclosure brings with it an additional risk of chill,”140 and
because of that risk, courts apply “exacting scrutiny” when evaluating
whether such demands for disclosure violate the First Amendment.
Roberts explained that under “that standard, there must be ‘a substantial relation between the disclosure requirement and a sufficiently
important governmental interest.’”141 For the first time, the Court
clarified that while “exacting scrutiny does not require that disclosure
regimes be the least restrictive means of achieving their ends, it does
require that they be narrowly tailored to the government’s asserted
interest.”142 It is not quite strict scrutiny, but it is close.
The Court further explained that “a dramatic mismatch” existed
between the California Attorney General’s stated goal of combatting
charitable fraud and “the disclosure regime” he implemented.143
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Moreover, the Court underscored that “a reasonable assessment of the
burdens imposed by disclosure should begin with an understanding
of the extent to which the burdens are unnecessary, and that requires
narrow tailoring”—which means that the more unnecessary a disclosure regime proves to be, the more likely it is that it cannot survive
exacting scrutiny.144 Even if one steps away from the tiers-of-scrutiny
analysis, it is clear that the “text and history of the Assembly Clause
suggest that the right to assemble includes the right to associate
anonymously.”145
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The lack of a need for rules should end the analysis, and the
analogy to campaign finance cases makes little sense. As the
Court has repeatedly stressed, in “the First Amendment context, fit
matters.”146 Also, as explained above, even though the government
might have an interest in requiring some disclosures from amicus
filers, those interests are adequately served by the current regime
implemented by Appellate Rule of Procedure 29. The lack of a need
for enhanced disclosures, the arbitrary limits for disclosure in the new
proposed regime, and the resulting lack of fit between any government
interest and the proposed disclosures all counsel against them as
violating the First Amendment.
Perhaps this is why the Advisory Committee of the Judicial Conference attempted to analogize the proposed amendments to the
campaign finance laws that the Supreme Court has upheld to justify
courts’ interest in knowing who is sponsoring the entities filing briefs
in their proceedings. “Disclosure requirements in connection with
amicus briefs,” it argued, “serve an important government interest in
helping courts evaluate the submissions of those who seek to persuade
them, in a way that is analogous to campaign finance disclosures that
help voters to evaluate those who seek to persuade them.”147 More
troublingly, the Committee remarked that it rejected “the perspective
that the only thing that matters in an amicus brief is the persuasiveness of the arguments in that brief, so that information about the
amicus is irrelevant.” It then emphasized that “the identity of the
amicus does matter, at least in some cases, to some judges.”148
Think about that for a moment. Essentially, the Committee is justifying constitutionally suspect disclosure rules on the basis that some
judges might care more about who is supporting certain positions than
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they care about the merits of the arguments made. If so, it is shameful
and blatant partisanship and a flagrant rejection of the idea that
lady justice wears a blindfold. Because of this, it is doubtful that any
individual judge would sign his or her name to such a statement—and
if he or she did do so, it would likely be a sound basis for a judicial
ethics complaint.
The Advisory Committee’s campaign finance analogy is thus inapposite. Moreover, as Senators McConnell, Thune, and Cornyn have made
clear, “courts are not Congress, litigation is not an election, and an
appellate docket is not a free-for-all”—meaning that the “justifications
for campaign-finance disclosure identified in Buckley do not apply
here.” As they further observed, that “the Advisory Committee saw fit
to analogize the two reflects the judgment of a body that apparently
understand neither campaigns nor judging.”149
Conclusion
At the end of the day, courts are courts of law, not courts of public policy.
For many judges, policy may play a role in judicial decision-making (for
example, in evaluating the impact of a legal rule on various interests), but
federal judges are bound to say what the law is, not what they think it ought
to be. Under either a law declaration or a dispute resolution theory of judging, what matters is whether the judge decides a case according to law—not
according to politics.
Judges have an interest in knowing whether the parties are playing by the
rules. That, after all, is the purpose of disclosing whether a party authored
or funded a brief. But any demand to know with whom an amicus otherwise
associates should raise concerns about partiality and bias. The notion that
judges should refuse to consider an argument because it might advance
certain disfavored interests is incompatible with judicial integrity. Judges
should recognize that attempts to convince them otherwise are nothing
more than a trap.
Zack Smith is Senior Legal Fellow and Manager of the Supreme Court and Appellate
Advocacy Program in the Edwin J. Meese III Center for Legal and Judicial Studies at The
Heritage Foundation. Seth Lucas is Senior Research Associate in the Meese Center.
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Endnotes
1.
Star Wars: Return of the Jedi (1983), https://www.youtube.com/watch?v=wk-6DPrcMv4.
2.
Linda Sandstrom Simard, An Empirical Study of Amici Curiae in Federal Court: A Fine Balance of Access Efficiency, and Adversarialism, 27 Rev. Litig.
669, 676 (2008).
3.
Amicus Curiae, Black’s Law Dictionary (11th ed. 2019).
4.
Simard, supra note 2, at 676; Samuel Krislov, The Amicus Curiae Brief: From Friendship to Advocacy, 72 Yale L.J. 694, 694–95 (1963).
5.
Krislov, supra note 4, at 695 (quoting Holthouse’s Law Dictionary).
6.
Id. at 694 (quoting Abbott’s Dictionary of Terms and Phrases).
7.
Id. at 695 (citing Horton & Ruesby, Comb. 33, 90 Eng/Rep. 326 (K.B. 1686)).
8.
Id. (quoting The Prince’s Case, 8 Coke 1, 29a, 77 Eng. Rep. 481, 516 (1606)).
9.
See id. at 696.
10.
See id.
11.
Id. at 696–97 (citing Coxe v. Phillips, 95 Eng. Rep. 152 (K.B. 1736)).
12.
Id.
13.
Id.
14.
Id. at 699–700. Krislov explains that participating as an amicus curiae was one of several paths for third-party involvement at the time. Id. at 699
(citing Hersman, Intervention in Federal Courts, 61 Am. L. Rev. 1, 4–6 (1927)).
15.
Id. at 699 (citing Green v. Biddle, 11 U.S. (7 Cranch) 116 (1812)). Note that 1821, when Clay appeared as an amicus curiae, was the first year the Court
accepted written filings. Joseph Kearney & Thomas Merrill, The Influence of Amicus Curiae Briefs on the Supreme Court, 148 U. Pa. L. Rev. 743,
744 n.1 (2000).
16.
Krislov, supra note 4, at 699–700.
17.
Id. at 701–02 (citing Florida v. Georgia, 58 U.S. (17 How.) 478 (1854)). The states objected, thus requiring the Court to decide on its own whether the
Attorney General could participate. Id. What might have made this decision difficult was that the case fell under the Court’s original jurisdiction, but,
as Justice Curtis noted in a dissent, the United States had an interest in the suit and so was at least a quasi-party. Id. (citing Florida, 58 U.S. (17 How.)
at 498)). Under Article III, Justice Curtis explained, all jurisdictional grants involving the United States as a party fell under the Court’s appellate
jurisdiction, not its original jurisdiction. See Florida, 58 U.S. (17 How.) at 504–05.
18.
Krislov, supra note 4, 702.
19.
Id. at 702–03.
20. Id. at 703.
21.
Id.
22. Id. at 707–08; see also, e.g., Tomiko Brown-Nagin, In Memoriam: Justice Ruth Bader Ginsburg, The Last Civil Rights Lawyer on the Supreme Court, 56
Harv. C.R.-C.L.L. Rev. 15, 15 (2021) (“The ACLU’s Ginsburg-led campaign during the 1970s to dismantle laws that classified by sex followed the blueprint
of the NAACP’s Marshall-led campaign during the 1940s and 50s….”); Michael J. Klarman, Social Reform Litigation and Its Challenges: An Essay in
Honor of Justice Ruth Bader Ginsburg, 32 Harv. J.L. & Gender 251, 279 (2009) (observing that the Supreme Court decided Reed v. Reed, 404 U.S. 71
(1971), on the same grounds raised by Ginsburg and the ALCU as a secondary argument in an amicus brief).
23.
Id. at 713.
24. Id. at 713–14.
25. Id.
26. Kearney & Merrill, supra note 15, at 763.
27.
Krislov, supra note 4, at 715.
28. Kearney & Merrill, supra note 15, at 749; Allison Larsen & Neal Devins, The Amicus Machine, 102 Va. L.R. 1901, 1902 & nn. 2–3 (2016).
29. Kearney & Merrill, supra note 15, at 744.
30. Scott Harris, Revisions to Rules of the Supreme Court of the United States (2022), https://www.supremecourt.gov/filingandrules/
SummaryOfRuleChanges2023.pdf.
31.
See generally Larsen & Devins, supra note 28.
32.
Larsen & Devins, supra note 28, at 1903.
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