With reference to SCOTUS cases, is the bottom line regarding petitions for amicus curiae status that the SCOTUS itself makes the final decision to accept or not, and need not justify its decision in any way?
Yep.
By consent of the parties or by leave of the court (though the latter is disfavored), with exceptions for those filed by the Solicitor General and Attorneys General.
Why is leave of the Court disfavoured? I would have thought the Court would want to keep control over the number of briefs being filed? And does the ability of the federal and state governments to file briefs depend at all on the subject matter, or is it on any matter before the Court?
Reason I ask is that it’s much more restricted in the Supreme Court of Canada - the federal and provincial Attorneys General only have a limited right to intervene, on constitutional issues. For all other cases, the AGs have to apply to intervene, just like any other potential intervener.
I don’t know anything about it, really, I was just reading the rule. It is codified in the rule that acceptance of briefs not consented to by all parties is disfavored.
Why do you say ‘intervene’? An amicus curiae brief only presents an argument for a particular decision in the case; the Court is not obliged to accept it, consider it, or use it in their deliberations. It’s not as if any brief is likely to have a significant impact on the case at hand.
That’s the equivalent term used in the Supreme Court of Canada. It’s only done by leave of the Court, except for the limited power of the AGs to intervene in constitutional issues. I’m just a bit surprised that the Supreme Court of the United States wouldn’t have a stricter control over the filing of amicus briefs.
Oh. Duh.
Well, I’m inclined to think that they can afford to employ several clerks to sort through the briefs, because there might be quite a few that make a difference.
You’ve basically hit on the problem right there. Supreme Court law clerks are the creme de la creme of recent law school graduates, and are limited in number – I believe it’s three clerks per Associate Justice and four for the Chief, if they haven’t revised the figures again.
If you have ever seen the volumes of legal argument that some controversial issue can raise, the court has a strong interest in not being buried beneath literally hundreds of amicus curiae briefs.
In general, a state Attorney General or a federal agency legal representative will file an AC brief only on cases of strong importance to the state or agency to which it is not itself a party.
The Solicitor General is the interesting element. According to Archibald Cox, in addition to his role representing the U.S. Government before the Court, the SG also fulfills a function to the Court of providing a rather comprehensive briefing on facts and relevant law, generally in support of a preferred position but with the facilitative aspect as important as the argumentative. SGs take this role seriously and do not abuse it by providing slanted, biased briefs. The SG can and often does choose to intervene with an AC brief whenever the issue is of any importance to the government, and sometimes at the request of the court.
Nobody said they had to read them. Generally, amicus curiae briefs are only significant in that they sometimes make much better sense than SCOTUS’ own opinions and better codify the reasoning behind a decision.
Thanks.
Now just to make sure I’ve understood (never underestimate my prowess at self-confusion), am I correct in interpreting “consent of all parties” as excluding the Court itself (otherwise, why would it have been necessary to add “or if the Court grants leave to file”?). If my interpretation is correct, does that really mean that the respondent and the petitioner can compel the SCOTUS to accept an AC brief that it doesn’t want?
Seems like the only sensible reading to me.
The court is not a “party” to the action. The parties are the plaintiff(s) and defendant(s) or respondent(s).
Technically, “appellant(s)” and “respondent(s)” since virtually every SCOTUS case is on appeal from another decision. Otherwise, accurate identification of “party” status.
This is not what the rule says at all.
There are two situations listed where motion for leave to file an amicus brief will be disfavored. The first is found in §1: when the brief isn’t pointing out something new that the parties have failed to raise in their own briefs (the Court doesn’t want “me too” briefs). The second is in §2(b): where the parties haven’t consented and the Court has not yet granted certiorari, that is, the Court hasn’t said whether or not it will hear the case (the Court doesn’t want a whole bunch of people telling it whether or not to take a case up).
But in §3, we see that there is no disfavor towards motions for leave to file an amicus brief without party consent once cert has been granted.
Technically not “appellants” because almost no cases before the Court are “appeals.” Almost all cases the court hears are on Petition for Writ of Certiorari, so the proper term would be Petitioner. 
Correct, this disfavor is limited to writ of certiorari, motion for leave to file a bill of complaint, jurisdictional statement, or petition for an extraordinary writ.
FWIW, I spotted this mistake after my haste to post and didn’t bother posting a follow-up since I assumed people just read the rule.
It’s up to four law clerks for each Associate and five for the Chief Justice. Circuit Courts of Appeal Judges get three, District Judges get two. Justices and Judges can get an extra law clerk if they choose to have one less court administrator (or in the case of District Judges, no court administrator), but very few of them do so, despite the law clerk’s natural charm and sparkling wit. 