Filing an Amicus Curiae Brief in the U.S. Supreme Court

According to Supreme Court Rule 37.1, the filing of “an amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court” in determining the importance of the case. In fact, some studies have found that the filing of an amicus brief in support of a Petition can significantly increase the chances of acceptance “from 8.5 to 37.1 percent.” H.W. Perry, Jr., Deciding to Decide 137 (1991) (Table 5.4). The filing of several amicus briefs by diverse groups, the involvement of the Solicitor General or one or more states further increases the success rate.

While a good amicus brief can help the Petitioner on the Certiorari stage, a well-crafted amicus brief on the Merits stage may be of assistance to both parties by highlighting for the Court factual information or analytical approaches not provided by the parties. A persuasive amicus brief on the Merits may even “help shape the judicial decision.” See Gressman, E., et al., Supreme Court Practice, at 741 (9th ed.).

While it is easy to understand the important role an amicus brief can play in the Supreme Court, understanding the intricacies of Rule 37 (which governs the filing of amicus briefs) can present some difficulties. The following guide may help:

Time for filing – Certiorari stage: An amicus brief on the Certiorari stage in support of the Petitioner must be filed within 30 days after the case is placed on the docket. This is usually the same date that a brief in opposition is due and can easily be found on the Supreme Court docket. However, it is important to note that when the Respondent is granted an extension to file the brief in opposition, that extension does not apply to an amicus brief in support of Petitioner. It is rare that an amicus brief is filed in support of the Respondent at this stage, but if one is filed, it must be “submitted within the time allowed for filing a brief in opposition.” See Supreme Court Rule 37.2(a). Thus, an amicus brief supporting a Respondent does benefit from an extension received by the Respondent.

Time for filing – Merits stage: An amicus brief on the Merits stage must be filed within 7 days after the brief for the party supported is filed. For example, if the Respondent filed their amicus brief on October 7, 2009, the amicus brief in support of the Respondent would be due on October 14, 2009. If the amicus brief is supporting neither party, the brief is due no later than 7 days after the time allowed for filing the Petitioner’s brief, i.e., at the same time as an amicus in support of the Petitioner.

Consent: On both the Certiorari stage and the Merits stage, written consent of all parties should accompany amicus briefs sent to the Court. Written consent need not be a formal letter; an email from Counsel of Record or co-counsel granting consent is also acceptable. If an amicus group does not receive consent from both parties, they must file a motion for leave to file the brief indicating the party or parties who have withheld consent and the nature of the amicus’ interest in the case. See Rule 37.3(b). If a motion is required, it is not a separate document. It should appear directly after the title page and before the index. The Court does not require the United States Government, its agencies, a State, Commonwealth, Territory or Possession to have consent to file an amicus brief.

Amicus footnote: The first footnote on the first page of text of the amicus brief must indicate whether counsel for a party authored any part of the brief and whether counsel or a party made a monetary contribution intended to fund the preparation or submission of the amicus brief. On the Certiorari stage, there must also be a statement indicating that parties were notified 10 days prior to the filing of the brief of the amicus’ intention to file. See Rule 37.6 and a sample footnote here. In addition, this footnote will also contain a statement indicating that the parties have consented to the filing of this brief.