Amicus Curiae at the Supreme Court: Last Term and the Decade in Review

November 18, 2020

Supreme Court Brief Amicus Curiae at the Supreme Court: Last Term and the Decade in Review Anthony Franze and Reeves Anderson, members of Arnold & Porter’s appellate and Supreme Court practice, analyze last term’s amicus docket and review their findings since 2010. by Anthony J. Franze and R. Reeves Anderson

Anthony J. Franze

R. Reeves Anderson ver the past decade, the ing process. In our first installment of in more than half of their rulings. Supreme Court has issued what became annual reviews of the Once a rarity even in blockbuster Olandmark rulings on health high court’s amicus curiae docket for cases, amicus participation repeatedly care, same-sex marriage, affirma- the National Law Journal, we noted shattered records both for the overall tive action, and many other critical that the 2010–11 term reflected an number of briefs and the number of issues of our times. During those ten “explosion of amicus briefs.” Franze amici appearing in a single case. The years, the Notorious RBG cemented & Anderson, The Court’s Increasing decade further revealed the types herself as a cultural icon, three new Reliance on Amicus Curiae in the Past of amicus briefs that grabbed the justices joined the court, and One Term, Nat’l L.J., Aug. 23, 2011. If we court’s attention. The justices fre- First Street was shuttered during a only knew. quently cited briefs from the federal pandemic. Over ten terms, amici cumulatively and state governments, briefs written Along the way, amici curiae— filed more than 8,000 briefs, par- by Supreme Court specialists, and “friends of the court”—played a ticipated in 96 percent of all argued “scholar briefs” from the academy. prominent role in the decision-mak- cases, and were cited by the justices Most of all, the justices were drawn the national law journal November 18, 2020

LGBT employees, topped the list in 2019–20. Bostock and its consolidated companion cases (Harris and Altitude Express) received 94 unique amicus filings. CITATION OF “GREEN” AND GOVERNMENT BRIEFS In the 2019–20 term, the justices cited amicus briefs in 65 percent of argued cases with amicus participation and signed majority opin- to briefs that did not just reiterate as well, with friends of the court fil- ions. That rate tops the previous nine the parties’ arguments but instead ing briefs in 97 percent of argued terms, during which justices cited provided real-world information that cases, for a total of 911 amicus briefs. friend-of-the-court briefs in 46 to 63 contextualized the difficult questions That total is the second highest since percent of cases. Last term, the jus- before the court. we started tracking amicus filings in tices cited amicus briefs in 22 major- Reflecting on these past ten years, 2010, trailing only the 1,003 amicus ity/plurality opinions, 20 dissents, six we found it fitting that Justice Ruth briefs filed during the 2012–13 term. concurrences, and two opinions con- Bader Ginsburg—a person with so Last term likewise saw a return of curring and dissenting in part. As in many friends during her life—was the mega-cases for amicus participation. prior years, we exclude from our sta- justice most likely to cite friends of “Cases with thirty or more amic- tistics the term’s two court-appointed the court over the past decade. us briefs are no longer particularly amici, whose submissions are more In many ways, last term was rare, and the highest-profile cases see akin to party briefs. emblematic of modern Supreme amicus filing reaching the triple dig- The justices cited 10 percent Court amicus practice. The 2019– its.” Aaron-Andrew P. Bruhl & Adam (76/768) of the nongovernment 20 term had more than 900 amic- Feldman, Separating Amicus Wheat amicus briefs filed in cases with us briefs filed in argued cases, the from Chaff, 106 Geo. L.J. Online 135, signed opinions. That citation rate of highest average number of amicus 135 (2017). In 2019–20, eight differ- “green briefs”—so-called for the color briefs per case ever. The justices cited ent cases included at least 30 amicus of their covers—is in line with the briefs in 65 percent of cases—anoth- briefs (Bostock, Espinoza, June Medical, prior nine terms, where the justices er record—relying on friends of the Little Sisters of the Poor, NY State Rifle, cited between 5 and 12 percent of court for perspectives on government Our Lady of Guadalupe, Regents of Univ. nongovernment briefs. policies, history, religion, medicine, of California, and Seila Law). As for government amicus briefs, psychology, and even the financial Cases involving hot-button issues the justices cited 63 percent (15/24) implications of the court’s decisions. like marriage equality and health of briefs submitted by the Office of care tend to generate the most briefs, LAST TERM BROKE MORE RECORDS the Solicitor General in 2019–20, though patent cases also spur sig- again roughly in the middle of the In the 2019–20 term, amici cur- nificant amicus participation. Keep- 44 to 81 percent range over the prior iae filed on average 16 briefs per ing with that trend, Bostock v. Clayton nine terms. case at the merits stage, an all-time County, which held that Title VII’s For the fourth straight term, Justice high. Overall participation increased ban on sex discrimination protects Elena Kagan led the court by citing amicus briefs in the highest percentage of her opinions (67%). At the other end of the spectrum, Justices Neil Gorsuch and Brett Kavanaugh had the lowest percentage of amicus citations in 2019–20, at 15 and 7 percent respectively. Time will tell the national law journal November 18, 2020

Briefs, 20 J.L. & Pol. 33, 52 (2004). Last term again illustrates the point. In 2019–20, every single justice cited a brief by professors in at least one of their opinions. They cited professors of criminal law (Kahler), immi- gration law (Barton), habeas corpus law (Thuraissigiam), and church-state law (Little Sisters of the Poor), among others. Again, just because justices cite scholar briefs does not always mean that they agree with them. In Justice Kavanaugh’s dissenting opinion in Bostock—the only opinion where he cited an amicus brief—he highlighted a scholar amicus brief just to note his disagreement with it. Legislative Facts. If the past ten whether the lower citation rates of instance, in Our Lady of Guadalupe terms have reflected anything about the court’s two newer justices is a School v. Morrissey-Berru, where the amicus briefs, it’s that submissions that court held that Catholic elementa- reflection of their views of amicus merely reiterate the arguments made briefs or perhaps attributable to other ry school teachers are “ministers” by the parties—“me too” briefs—are factors. The remaining justices cited who cannot sue for employment dis- almost never cited. Instead, the justices amicus briefs in 23 to 56 percent of crimination, Justice Sonia Sotomay- appear drawn to briefs that contain their opinions. or’s dissenting opinion cited an OSG what have been called “legislative brief to call out the government for THE BRIEFS THAT GOT NOTICED facts”—“generalized facts about the “switch[ing] sides without explana- world that are not limited to any specific So how does an amicus get noticed tion” on the question presented. case.” Allison Orr Larsen, The Trouble in the crowd? Last term, like its pre- Other government amicus briefs With Amicus Facts, 100 Va. L. Rev. 1757, decessors, reflected some recurring also drew attention last term. In Ramos 1759 (2014). Our past reports have guideposts for the types of briefs that v. Louisiana, where the court held that chronicled the array of legislative facts catch the court’s attention—and not the Sixth Amendment establishes a provided by amici that have found always because the justices agreed right to a unanimous jury in criminal their way into the justices’ opinions. with their friends. cases, the majority and dissenting The 2019–20 term was no different. Government briefs. The justices opinions discussed an amicus brief The justices cited amicus briefs that often cite amicus briefs filed by the submitted by the State of Oregon provided information on the num- Office of the Solicitor General, given regarding the number of pending ber of “individuals killed by border the OSG’s institutional credibility with appeals that could be affected by the agents” (Hernandez), studies on the the high court. As noted, that held court’s decision. The justices simi- reasons drivers have their licenses sus- true in 2019–20. The government’s larly relied on state amicus briefs in pended (Glover), the financial strain briefs earned attention across the the majority and dissenting opinions to businesses from excluding DACA court’s lineup, with seven of nine in County of Maui v. Hawaii Wildlife recipients from the lawful labor force justices citing an OSG brief during the Fund, a case involving the scope of (Regents of Univ. of California), guid- 2019–20 term. the Clean Water Act. ance on how effective consumer sur- That’s not to say the justices always Scholar Briefs. Studies show veys are designed (Booking.com), data agree with the United States. The that briefs by academics get “closer on the health and other benefits of justices regularly cite OSG amicus attention—at least initially.” Kelly effective contraception (Little Sisters of briefs to scrutinize or reject the gov- J. Lynch, Best Friends? Supreme Court the Poor), and insights into religious ernment’s arguments. Last term, for Law Clerks on Effective Amicus Curiae practices of different faiths (Our Lady the national law journal November 18, 2020 of Guadalupe), just to name a few. Amicus Curiae Briefs on the Supreme friend-of-the-court briefs during this Though not as prevalent last term, Court, 148 U. Pa. L. Rev. 743, 752–53 period. Larsen & Devins, supra, at the justices in prior years regularly (2000). From 1986–1995, that num- 1938 (reviewing petitions in OT14); have cited amicus briefs that compile ber increased to about five briefs per see also Paul Gugliuzza, The Supreme statutes, legislative history material, case. Id. at 765 n.71. Court Bar at the Bar of Patents, 95 Notre and surveys of state laws. Double and even triple-digit amicus Dame L. Rev. 1233, 1249 (2020). Advocates and Amici. Finally, briefs in a single case also has become We also see consistency in the jus- studies and experience suggest that the norm. In seven of the past ten tices’ citations to amicus briefs. In cases advocates and amici known for quality terms, a single case generated at least with signed opinions that included at briefs get more attention. Allison Orr 80 amicus briefs. These numbers least one amicus brief, the justices cited Larsen & Neal Devins, The Amicus dwarf the marquee cases of the past, amicus briefs between 46 and 65 per- Machine, 102 Va. L. Rev. 1901, 1922– when Roe v. Wade produced 23 amicus cent of the time over the past decade. 23 (2016); see also Adam Feldman, A briefs and Brown v. Board saw just six. The citation rate for green briefs stayed Lot at Stake: Amicus Filers 2017/2018, Amicus participation has broad- between 5–12 percent, and the OSG Empirical SCOTUS, Jan. 16, 2018. ened, as well. Since 2010, amici have was typically cited in 60–80 percent of That held true in the 2019–20 term. participated in 96 percent of all argued cases in which the United States par- Overall, around 40 percent of the cases; it is now the rare exception to ticipated as an amicus. green briefs cited by the justices were find a case without amici. By contrast, Looking at the justices’ ten-year authored by firms with specialized from 1946 to 1955, amici curiae filed totals, Justice Ginsburg led the group Supreme Court practices. briefs in only 23 percent of argued by citing amicus briefs in 46 percent cases, and from 1986 to 1995, about of her opinions. One might notice, THE DECADE BY THE NUMBERS 85 percent of argued cases that had too, an apparent correlation between Over the past ten terms, amici filed amicus support. Kearney & Merrill, amicus citation rates and a justices’ 8,041 separate briefs on the mer- supra, at 753. perceived ideology along a politi- its in cases that were set for argu- It is important to note that today’s cal spectrum. Notably, however, the ment—a decade average of 12 amicus record-breaking numbers reflect just court’s two “swing justices” since briefs per case, ranging from a low of a fraction of overall amicus partici- 2010—retired Justice Anthony Ken- nine briefs per case when we started pation at the court. Excluded from nedy and Chief Justice John Rob- counting in 2010 to a high of 16 briefs our totals are briefs filed in cases erts—seem to defy that trend by per case this year. that were removed from the court’s citing amicus briefs in a relatively To put these numbers in perspec- docket before merits briefing was higher percentage of their opinions. tive, a key study showed that from complete, as well as amicus briefs AN INCREASED SPOTLIGHT 1946 to 1955 amici cumulatively filed filed at the certiorari stage. Cert-stage ON AMICUS CURIAE 531 briefs—an average of fewer than amicus briefs are increasingly com- one brief per case. Joseph Kearney mon; one study found that 14 percent The vast increase in amicus par- & Thomas Merrill, The Influence of of paid petitions were supported by ticipation has led to greater scru- tiny of amicus practice. For example, prominent academics have criticized scholar briefs for not always adhering to the rigors of scholarship, Richard H. Fallon Jr., Scholars’ Briefs and the Vocation of a Law Professor, 4 J. Legal Analysis 223 (2012), but also praised scholar briefs as beneficial to both the Court and the academy. See Amanda Frost, In Defense of Scholars’ Brief, 16 Green Bag 2d 135 (2013). Some have criticized how amicus practice is increasingly inhabited the national law journal November 18, 2020

Scarcella, Sheldon Whitehouse Slams ‘Plainly Inadequate’ SCOTUS Amicus Dis- closure Rule, Nat’l L.J., Jan. 23, 2020. Senator Whitehouse again voiced his concerns during the recent confirma- tion hearing of Justice Amy Coney Barrett. The current term will provide a first glimpse into whether Justice Bar- rett adopts the Supreme Court’s solici- tous view of amicus briefs or main- tains the more restrictive approach to amicus participation championed by her former colleagues on the Sev- enth Circuit. See Prairie Rivers Network by a small group of specialist law- Andrew Bruhl have warned of “a v. Dynegy Midwest Generation LLC, 976 yers, while other notable scholars growing threat of amicus overload, F.3d 761 (7th Cir. 2020) (Scudder, J., have defended the so-called “amicus especially in the most salient cases,” in chambers) (citing cases reflecting machine.” Larsen & Devins, supra. projecting that “the problem will only the Seventh Circuit’s more restrictive And while the court continues to rely become more acute if current filing policy regarding amicus briefs and on amicus briefs for a wide range of trends continue.” Bruhl & Feldman, providing guideposts for effective and expertise, William & Mary law pro- supra. Nevertheless, to date, the court permissible briefs). fessor Allison Orr Larsen has urged has not placed any new restrictions It’s been nearly 200 years since caution when relying on amici for on amicus submissions other than a the first recorded amicus brief was legislative facts. Larsen, supra. recent, modest reduction in the over- filed by famous statesman Henry Clay The sheer volume of amicus briefs all word limit for amicus briefs. in Green v. Biddle, 21 U.S. (8 Wheat) also sparked debate. Professor Adam Finally, Senator Sheldon White- 1 (1823), a case involving Virginia’s Feldman, who runs Empirical SCO- house has urged the Supreme Court to cession of the land that became Clay’s TUS—a go-to source for statistics on increase transparency in the funding home state of Kentucky. Amici curiae the high court—and Professor Aaron- of nongovernment briefs. See Mike have steadily become a mainstay of Supreme Court practice ever since. If the past decade is any indication, the justices can continue to count on their “friends” showing up in record numbers to share their views and maybe, just maybe, influence the course of history. Though many would happily settle for a citation.

Anthony J. Franze and R. Reeves Anderson are members of Arnold & Porter’s appellate and Supreme Court practice. The firm represented parties or amici in several cases referenced in this article. The authors thank Kathryne Lindsey for her invaluable assistance with the compilation of data.

Reprinted with permission from the November 18, 2020 edition of THE NATIONAL LAW JOURNAL © 2020 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, [email protected] or visit www.almreprints.com. # NLJ-11192020-465997