Enviado pelo mestrando em Direito da UFRJ Vinicius Pintas Miranda
To get on the argument docket, it helps to have friends
Tony Mauro and Marcia Coyle
July 28, 2010
The Supreme Court term that ended a month ago offered more proof of a subtle but
significant shift in practice before the Court: More and more organizations are
helping parties win a scarce spot on the argument docket by filing
friend-of-the-court briefs at an early stage.
In the 73 cases that were granted and decided last term by signed opinions, a total
of 74 amicus curiae briefs were filed before review or certiorari was granted, up
from 66 the previous term and 44 the term before that.
The impact reflected in those numbers has grown to the point that some practitioners
now say that cert-stage amicus briefs are more important than the traditional amicus
briefs filed later on at the merits stage, after the Court has granted review but
before the case is argued. Those later briefs continue to pile up at a staggering
rate, but justices sometimes complain they are repetitive and confess they don't
read all of them.
The Court still decides to review most new cases based only on filings from the
appellant and the appellee. But in an increasing number of cases, groups are
submitting amicus briefs shortly after petitions are filed, giving justices more to
chew on when they decide if the case is worth their attention. Last term, in the
closely watched business-methods patent case Bilski v. Doll, 11 separate briefs were
filed by groups telling the Court how important it was that the justices grant
"It is generally understood now that amicus briefs are more valuable at the cert
stage than at the merits stage," said Jonathan Hacker, an O'Melveny & Myers partner
in D.C. who co-chairs the National Association of Criminal Defense Lawyers Committee
that decides on amicus filings. "They have a strong signaling effect on the Court."
NACDL has placed increasing emphasis on cert-stage filings in recent years, he said.
The acknowledged leader in this trend is the National Chamber Litigation Center, the
litigating arm of the U.S. Chamber of Commerce. "We definitely put in more resources
at the cert-stage than the merits stage," said executive vice president Robin
Conrad. In the term just ended, the chamber filed amicus briefs supporting 20
petitions, and 16 cases on the merits. "It's where we feel we can do the most good."
In an era of scarce resources, Conrad said she can understand why many amicus groups
will only invest in a sure thing – a case that has already been granted. But she
sees value in filing in support of petitions, even though the chamber has less than
a 30% success rate. In part, that's because of the cumulative educational value of
For example, she said the Chamber will often file in support of petitions involving
class action lawsuits and punitive damages, both critical issues for business. Even
if the particular case is not granted, the Court will learn about the importance of
the issues over time, Conrad contends.
Supreme Court practitioner Kevin Newsom, a partner in Bradley Arant Boult Cummings
in Birmingham, Ala., and Alabama's former solicitor general, agrees with Hacker and
Conrad about the importance of this kind of brief.
"A point often lost on young lawyers is you're trying to do something entirely
different at the cert stage than at the merits stage," said Newsom, a former clerk
to Justice David Souter. "You're trying to convince the court that this case is
important not just to me but to this larger universe of people who will be affected
by it in a real way. It can add oomph to that contention."
The cert-stage amicus briefs can be especially helpful to the justices' law clerks,
who have a key gate-keeping role and may feel more confident recommending certiorari
in a case if the petition is backed up by endorsements from reputable advocacy or
"If you have a business case and the Chamber [of Commerce] or the [National
Association of Manufacturers] is willing to weigh in, that might matter; if you have
a criminal case and the [National Association of Criminal Defense Lawyers] is
willing to weigh in, that might matter," said Newsom. "If it's a qualified immunity
case brought by a city and you can get a group of states to weigh in, that might
Dan Schweitzer of the National Association of Attorneys General agrees that
cert-stage amicus briefs can be "a powerful tool" in spotlighting the importance of
a case for the Court, and states often file them. "States know that one of the
criteria of a cert grant is the importance of the case to others and the problems
that will be created if a certain lower court decision stands."
At the same time, Schweitzer said states and others need to be cautious about
overusing the tool. "The assertion that this case is vitally important is lost if
you say it too often, or if close review of the case reveals that it is not," he
NACDL is also selective about the criminal cases in which it will file a brief at
the early stage, says Hacker. "We get a lot of requests for support, but we have to
evaluate whether it is a good case from the viewpoint of criminal defendants, and
whether it is likely to move the law in the right direction." Translation: There's
not much point for the NACDFL to flag a case for the Court to take up if the
justices are certain to then rule against the defendant.
Sometimes, though, Hacker adds, when there is a circuit split and the defendant is
petitioning the high court in the face of likely defeat, "you can't avoid it." In
such a case, even though a loss is likely, the association may file a cert-stage
amicus brief anyway, to help frame the issues as positively as possible for criminal
Newsom also said parties in high court cases ought to be strategic, careful and
"choosey" about whom they select as cert-stage amici. He recalls a death penalty
habeas case that he handled in which the U.S. Court of Appeals for the 11th Circuit
"basically was wrong."
"My judgment was the Court was not going to grant and argue it. It just seemed too
sort of one-offish," he said. But he asked the solicitor general of Illinois — a
non-death penalty state — to file a cert-stage amicus brief.
"He did and it showed why this issue mattered not just to death penalty states," he
said. "I had asked for a summary reversal in the petition and we got it."
Newsom filed a cert-stage amicus brief on behalf of the Defense Research Institute
in AT&T Mobility v. Concepcion, a major arbitration case that the justices agreed to
hear this coming term.
"Our principal engagement was to explain why this matters practically to defense
lawyers who have clients who enter into these arbitration agreements," he said.
"We're now in the middle of writing the merits-stage amicus brief."