A reflection on the changes to the rules governing the filing of amicus curiae briefs in the United States Supreme Court.
Each new year typically comes with slight changes to the rules of appellate procedure, and 2023 was no exception. This year, the Supreme Court rolled out new rules for parties who file amicus curiae briefs. Thankfully, the changes made it much easier to be friends with the Golden Girls (and Boys) on the Court.
The requirements for filing amicus briefs are found in Supreme Court Rule 37. The changes to the rule deal with the requirements for filing amicus briefs before the Court’s consideration of a petition for writ of certiorari (i.e. cert stage briefs), and the rules for filing amicus briefs filed after cert has been granted but before oral argument (i.e. merits briefs). See Rules 37.2 & 37.3.
The first big change makes it easier to file amicus briefs across the board. Under the prior rule, the parties would either provide blanket consent to the filing of amicus briefs generally, or they would consent to the filing of specific briefs only. If the latter, all other aspiring amici were required to file a motion for leave to file an amicus brief. However, as of January 1, 2023, amici no longer need the consent of the parties to file anybrief, either at the cert stage or the merits stage.
This is good news for amici. The change simplifies how amici briefs get in front of the Court and allows diverse voices from across the country to weigh in on important and pressing issues. In order to take advantage of this change, however, the rules for filing amicus briefs must be carefully followed.
Cert Stage Briefs
Under the 2023 rules, all amicus briefs at the cert stage are welcome as long as the time limits and notice requirements are observed. The deadline to file an amicus brief in support of a petitioner at the cert stage is 30 days after the case is placed on the docket, or when the Court calls for a response, whichever is later. The deadline to file an amicus brief in support of a respondent at the cert stage is the same as the deadline to file a brief in opposition to the cert petition. For briefs supporting a respondent, an order extending the deadline to file an opposition brief to the cert petition also extends the deadline to file a supporting amicus brief. Rule 37.2.
Separately, amici must ensure that counsel of record for all parties receive notice of the amici‘s intention to file an amicus brief at least ten days prior to the deadline. If the amicus brief is filed more than ten days before the deadline, then no notice is required as the brief itself satisfies the notice requirement. Rule 37.2. The amicus brief must also indicate that notice was given, typically in the first footnote of the brief.
The following is an example of the language that can be used to provide notice to the counsel of record for the parties:
TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
PLEASE TAKE NOTICE THAT amicus curiae [name] intends to timely file an amicus curiae brief in support of [party].
PLEASE TAKE FURTHER NOTICE THAT amicus curiae reserves its right to have other amici curiae join its brief as signatories in support of [party].
The notice can be sent in a separate document with a case caption, along with a corresponding certificate of service. Alternatively, notice can be provided in the body of an email. Either way, the amicus brief should clearly indicate that counsel of record for the parties received timely notice of the intent to file the brief. Rule 37.2
Merits Stage Briefs
For merits stage briefs, the deadline to file an amicus brief is seven days after the brief deadline for the party supported by the amici. If the amicus brief supports multiple parties, the brief is due seven days after the last timely-filed brief of a party supported. Where the amicus brief is not in support of any party, the deadline is seven days after the time allowed for filing the petitioner’s brief, irrespective of when party briefs are actually filed. Notably, the ten-day notice requirement that applies to cert stage briefs, does not apply to merits stage briefs.
The 2023 Supreme Court rules for parties who file amicus curiae briefs have made it easier than ever to be a friend of the Court. Carefully following these rules and leaning on an experienced appellate practitioner while preparing your brief may even get the Court to thank you for being a friend.
David is an Associate with Hanson Bridgett’s Appellate practice group where he focuses on writs, appeals, and law and motion. He has filed numerous amicus curiae briefs on an array of issues, and has been Counsel of Record for amici in both the California and United States Supreme Courts.