# SCOTUS & amicus curiae - quick question **URL:** \ **Category:** Factual Questions\ **Created:** [July 1, 2007, 12:39am UTC](https://boards.straightdope.com/t/scotus-amicus-curiae-quick-question/410080 "2007-07-01T00:39:01Z")\ **Posts on this page:** 18\ **Page:** 1
**Author:** ![KarlGauss](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/karlgauss/32/3713_2.png) [@KarlGauss](https://boards.straightdope.com/u/KarlGauss)\ **Post date:** [July 1, 2007, 12:39am UTC](https://boards.straightdope.com/t/scotus-amicus-curiae-quick-question/410080/1 "2007-07-01T00:39:01Z")
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? ---
**Author:** ![friedo](https://avatars.discourse-cdn.com/v4/letter/f/8edcca/32.png) [@friedo](https://boards.straightdope.com/u/friedo)\ **Post date:** [July 1, 2007, 12:45am UTC](https://boards.straightdope.com/t/scotus-amicus-curiae-quick-question/410080/2 "2007-07-01T00:45:29Z")
Yep. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [July 1, 2007, 12:47am UTC](https://boards.straightdope.com/t/scotus-amicus-curiae-quick-question/410080/3 "2007-07-01T00:47:11Z")
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. > [@SCOTUS Rule 37](#): > > An amicus curiae brief…may be filed if accompanied by the written consent of all parties, or if the Court grants leave to file…No motion for leave to file an amicus curiae brief is necessary if the brief is presented on behalf of the United States by the Solicitor General; on behalf of any agency of the United States allowed by law to appear before this Court when submitted by the agency’s authorized legal representative; on behalf of a State, Commonwealth, Territory, or Possession when submitted by its Attorney General; or on behalf of a city, county, town, or similar entity when submitted by its authorized law officer. [Link.](http://www.law.cornell.edu/rules/supct/37.html) ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [July 1, 2007, 12:57am UTC](https://boards.straightdope.com/t/scotus-amicus-curiae-quick-question/410080/4 "2007-07-01T00:57:06Z")
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. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [July 1, 2007, 1:02am UTC](https://boards.straightdope.com/t/scotus-amicus-curiae-quick-question/410080/5 "2007-07-01T01:02:44Z")
[QUOTE=Northern Piper] 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. [/QUOTE] 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. ---
**Author:** ![Captain\_Carrot](https://avatars.discourse-cdn.com/v4/letter/c/f0a364/32.png) [@Captain\_Carrot](https://boards.straightdope.com/u/Captain_Carrot)\ **Post date:** [July 1, 2007, 1:19am UTC](https://boards.straightdope.com/t/scotus-amicus-curiae-quick-question/410080/6 "2007-07-01T01:19:26Z")
[QUOTE=Northern Piper] 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. [/QUOTE] 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. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [July 1, 2007, 1:32am UTC](https://boards.straightdope.com/t/scotus-amicus-curiae-quick-question/410080/7 "2007-07-01T01:32:52Z")
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. ---
**Author:** ![Captain\_Carrot](https://avatars.discourse-cdn.com/v4/letter/c/f0a364/32.png) [@Captain\_Carrot](https://boards.straightdope.com/u/Captain_Carrot)\ **Post date:** [July 1, 2007, 1:57am UTC](https://boards.straightdope.com/t/scotus-amicus-curiae-quick-question/410080/8 "2007-07-01T01:57:26Z")
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. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [July 1, 2007, 2:11am UTC](https://boards.straightdope.com/t/scotus-amicus-curiae-quick-question/410080/9 "2007-07-01T02:11:09Z")
[QUOTE=Captain Carrot] 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. [/QUOTE] 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. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [July 1, 2007, 2:11am UTC](https://boards.straightdope.com/t/scotus-amicus-curiae-quick-question/410080/10 "2007-07-01T02:11:09Z")
[QUOTE=Northern Piper] 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. [/QUOTE] 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. ---
**Author:** ![KarlGauss](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/karlgauss/32/3713_2.png) [@KarlGauss](https://boards.straightdope.com/u/KarlGauss)\ **Post date:** [July 1, 2007, 2:29am UTC](https://boards.straightdope.com/t/scotus-amicus-curiae-quick-question/410080/11 "2007-07-01T02:29:36Z")
> [@](#): > > An amicus curiae brief . . . may be filed (if there is) consent of all parties, or if the Court grants leave to file 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? ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [July 1, 2007, 3:13am UTC](https://boards.straightdope.com/t/scotus-amicus-curiae-quick-question/410080/12 "2007-07-01T03:13:54Z")
[QUOTE=KarlGauss] 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? [/QUOTE] Seems like the only sensible reading to me. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [July 1, 2007, 2:00pm UTC](https://boards.straightdope.com/t/scotus-amicus-curiae-quick-question/410080/13 "2007-07-01T14:00:01Z")
[QUOTE=KarlGauss] 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? [/QUOTE] The court is not a “party” to the action. The parties are the plaintiff(s) and defendant(s) or respondent(s). ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [July 1, 2007, 2:06pm UTC](https://boards.straightdope.com/t/scotus-amicus-curiae-quick-question/410080/14 "2007-07-01T14:06:39Z")
[QUOTE=Otto] The court is not a “party” to the action. The parties are the plaintiff(s) and defendant(s) or respondent(s). [/QUOTE] Technically, “appellant(s)” and “respondent(s)” since virtually every SCOTUS case is on appeal from another decision. Otherwise, accurate identification of “party” status. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [July 2, 2007, 2:00pm UTC](https://boards.straightdope.com/t/scotus-amicus-curiae-quick-question/410080/15 "2007-07-02T14:00:52Z")
[QUOTE=Richard Parker] 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. [/QUOTE] 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. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [July 2, 2007, 2:01pm UTC](https://boards.straightdope.com/t/scotus-amicus-curiae-quick-question/410080/16 "2007-07-02T14:01:59Z")
[QUOTE=Polycarp] Technically, “appellant(s)” and “respondent(s)” since virtually every SCOTUS case is on appeal from another decision. Otherwise, accurate identification of “party” status. [/QUOTE] 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. 😉 ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [July 2, 2007, 2:05pm UTC](https://boards.straightdope.com/t/scotus-amicus-curiae-quick-question/410080/17 "2007-07-02T14:05:43Z")
[QUOTE=DSYoungEsq] 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. [/QUOTE] 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. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [July 2, 2007, 3:02pm UTC](https://boards.straightdope.com/t/scotus-amicus-curiae-quick-question/410080/18 "2007-07-02T15:02:23Z")
[QUOTE=Polycarp] 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. [/QUOTE] 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. 🙂