Updated: June 7 10:00AM
This is the third in a series of posts about practioners’ reaction to proposed amendments to the Supreme Court’s rules. The first post addressed new word limits for briefs, font requirements and electronic filing. The second post looked into time limits for filing merits and cert-stage amicus briefs. This final post will discuss the most controversial change: an alteration to the disclosure requirements for amicus briefs. We also include links to some of the public comments sent to the Court in response to the proposed revisions.
UPDATE: We’ve now added comments from the National Association of Criminal Defense Lawyers and the ACLU/Public Citizen Litigation Group to the bottom of this post.
The Revision
The current version of Rule 37.6 requires each amicus brief to disclose, in the first footnote, “whether any counsel for a party authored the brief in whole or in part and shall identify every person or entity, other than the amicus curiae, its members, or its counsel, who made a monetary contribution to the preparation or submission of the brief.â€
The proposed revision adds an additional disclosure requirement: “whether such counsel or a party is a member of the amicus curiae, or made a monetary contribution to the preparation or submission of the brief.â€
The Reaction
This proposal caused a fair degree of consternation at a forum of some local Supreme Court practitioners sponsored by the Georgetown Supreme Court Institute. For one thing, many were concerned about the requirement that the amicus must disclose whether any lawyer in the case is a member, including counsel on the other side of the case. For example, an attorney representing the Government might, in fact, be a member of an organization filing an amicus brief against the Government in a particular case. The disclosure of that fact could be embarrassing and, most thought, served little purpose. The problem would be even more acute in some cases, for example, in cases in which political parties file amicus briefs, the parties would be required to inquire into and divulge the political affiliations of all the lawyers in the case. It would seem particularly problematic for, say, the Democratic Party to have to state that an attorney in the Solicitor General’s Office belonged to the party, especially if the brief was adverse to the position of the Government in that case.
In addition, a number of participants noted that some organizations that regularly file amicus briefs with the Court keep their membership rolls confidential. Requiring disclosure could, some speculated, give rise to First Amendment questions.
Complying with the rule could also be extremely burdensome, many thought. In a case involving a large number of attorneys on both sides, an amicus would have to check each attorney’s name against their membership rolls, a task that could be quite difficult for attorneys with common names.
Finally, there was some concern that simply paying dues to an organization would be considered making a “monetary contribution to the preparation or submission of the brief.â€
At the same time, some in the group were sympathetic with the perceived problem the revision is attempting to address. Under the current rules, it may be possible for a party to make substantial contributions to organizations with the understanding that the organization will file amicus briefs supporting that party in a particular case, or just in general, but without having to disclose the relationship.
Many at the meeting thought that this goal could best be achieved by tightening the disclosure requirements for indirect contributions intended to finance an amicus brief, and that the disclosure requirements with respect to individual attorneys were more problematic than those for parties.
Public Comments
Since releasing the proposed revisions, the Court has been receiving public comments addressing this and other issues. We have received copies of comments from some notable sources that our readers may be interested in reading.
The first is from a group of forty Supreme Court practitioners, drafted by David M. Gossett at Mayer, Brown, Rowe & Maw LLP.
The second is from the National Chamber Litigation Center (affiliated with the National Chamber of Commerce) and the National Association of Manufacturers.
We’ve recently also received the comments of the National Association of Criminal Defense Lawyers as well as comments from the ACLU/Public Citizen Litigation Group.
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