The Briefs on the Merits - Bna

Ch. 13.14 <strong>The</strong> <strong>Briefs</strong> on the Merits 735
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.
Counsel for an amicus (other than the United States, a state, or political
subdivision) should address a letter to the counsel of record for each party,
requesting written consent to the filing of an amicus brief and stating whatever
reasons may be deemed appropriate. If an entity other than the United
States or a state joins in the sponsoring of an amicus brief submitted by a governmental
entity, permission from the other parties or the Court must be obtained;
the brief will no longer be regarded as a government brief. Unless there
are compelling reasons to withhold consent, most attorneys receiving a request
will consent to the filing of an amicus brief even in support of the opposing
party. Virtually all timely motions to file an amicus brief are granted in any
event, and a party does not want to appear to the Court as having been fearful
of the content of the proferred amicus brief or unreasonable in withholding
consent. <strong>The</strong> written consent should consist of a reply letter from counsel for
each party to counsel for the amicus, stating simply that consent is hereby given
to the filing of the brief. <strong>The</strong>se letters must be filed with the Clerk, and a reference
to such consents on file with the Clerk should be made in the opening
paragraph of the amicus brief. It is also acceptable to file with the Clerk a letter
consenting generally to the filing of briefs by any amicus. Any motion for
leave to file should identify any party who has refused to consent. Rule 37.3(b).
For the reasons stated in Sec. 6.40, supra, amicus briefs may not be filed
by lawyers who are not members of the Supreme Court Bar or by nonlawyers
appearing pro se.
It is essential that, in cases before the Court on the merits, the amicus
brief comply with the requirement in Rule 37.3(a) that it be presented, along
with the motion if one is necessary, “within 7 days after the brief for the party
supported is filed, or if in support of neither party, within 7 days after the
time allowed for filing the petitioner’s or appellant’s brief.” Adherence to this
rule enables the opposing party to respond to the amicus brief in an answering
or reply brief. Ordinarily, 53 an amicus cannot obtain an extension of time
to file its brief, though its time will be extended if the party supported obtains
an extension of time to file the party’s brief. Late filings account for nearly all
the denials by the Court of leave to file amicus briefs on the merits. See, e.g.,
Doran v. Salem Inn, Inc., 421 U.S. 927 (1975).
53 Occasionally, for good cause, the Court has granted motions to file an amicus brief out of time.
Stoneridge Inv. Partners v. Scientific-Atlanta, 168 L. Ed. 2d 794 (2007) (motions of former SEC Commissioners
and members of Congress to file amicus briefs after Solicitor General filed a brief taking a position
inconsistent with that recommended by the SEC); United States v. Salerno, 479 U.S. 1015 (1986)
(motion of American Bar Association); International Union, Auto. Worker v. Brock, 475 U.S. 1093, 477
U.S. 274 (1986) (motion of Chamber of Commerce, AFL-CIO, NAACP, National Association of Manufacturers,
Sierra Club, etc., which urged that “good cause for filing an amicus brief out of time exists in
this case because the government waited until after petitioners had filed their brief on the merits in this
Court before suggesting in any way that the Court should overrule its decisions establishing the standing
of organizations like amici to assert the rights of their members in federal court litigation”). In Behrens v.
Pelletier, 514 U.S. 1106 (1995), the Solicitor General sought leave to file an amicus brief 30 days following
the decision in two other relevant cases then pending before the Supreme Court. <strong>The</strong> Court responded
with an order resetting the briefing schedule for all parties to the case.