Fundamentals of Preparing a United States Supreme Court Amicus Brief

The prominence of amicus briefs in United States Supreme Court practice was dramatically illustrated during oral argument in last Term's most prominent case, Grutter v. Bollinger. (1) Less than five minutes into the argument, Justice Ginsburg posed the following question to petitioner's counsel: Mr. Kolbo, may I call your attention in that regard to the brief that was filed on behalf of some retired military officers who said that to have an officer corps that includes minority members in any number, there is no way to do it other than to give not an overriding preference, but a plus for race.... What is your answer to the argument made in that brief that there simply is no other way to have Armed Forces in which minorities will be represented not only largely among enlisted members, but also among the officer cadre? (2) The next several minutes, and the first several minutes of Solicitor General Theodore Olson's argument, were devoted to addressing the retired officers' amicus brief. (3) To be sure, few amicus briefs (apart from those filed by the Solicitor General) have such a profound effect on the course of an argument or decision. (4) But virtually all amicus briefs are read by the Justices and/or their clerks, and the submission of such briefs is an established and accepted part of Supreme Court practice. (5) It is therefore incumbent upon persons and entities with a stake in Supreme Court cases to understand the amicus brief process and the types of arguments that are effective in an amicus brief. Supreme Court amicus briefs are unique documents that pose strategic and often new challenges to even the most experienced appellate advocate. The Court has its own set of rules and customs, as well as a unique outlook arising from its position atop our judicial system. Arguments that would be powerful before a federal court of appeals--such as the decisions of other federal courts of appeals--carry far less weight in the Supreme Court. Policy arguments, on the other hand, are often far more important to the Supreme Court than to other courts. This Article seeks to assist practitioners in navigating through the shoals of Supreme Court practice and crafting amicus briefs that move the Court in their direction. Part I below reviews the procedural rules governing amicus briefs; Part II discusses the role of amicus briefs and their subject matter; and Part III addresses the specific sections of amicus briefs. I. THE RULES Rule 37 of the Rules of the Supreme Court specifically addresses amicus practice, but you should also study Rule 29 (on filing and service), Rule 30 (on computation of time) and Rule 33 (on document formatting, including page limits and cover colors). The following is a brief rundown of the most important requirements. * Consent. As a general matter, an amicus brief may only be filed if the parties consent or the Court grants a motion for leave to file an amicus brief. (6) The Court grants such motions (when timely filed) as a matter of course; knowledgeable counsel for parties therefore agree to most requests for consent. Consent is not required of the United States, of States, or of local governmental units with respect to amicus briefs filed by the Solicitor General, state Attorneys General, or authorized local law officers, respectively. (7) A government amicus brief does not have to alert the Court to this fact in the brief; the Court knows. * Disclosure footnote. In 1997, the Court adopted Rule 37.6, which requires most amicus briefs to disclose, in the first footnote of the brief, "whether counsel for a party authored the brief in whole or in part and [to] 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. …