Amicus Briefs on the Merits for the 2020 Supreme Court Term

In Litigation, Resources, Supreme Court by Adam FeldmanLeave a Comment

Amicus networks are vast in Supreme Court litigation. This term alone, groups filed almost 940 amicus briefs on the merits in the 58 argued cases. While amicus briefs do not generally have the same impact as parties’ merits briefs, they do play an important role in decision making. This post focuses on amicus briefs filed on the merits (not at cert stage) during the 2020 Supreme Court Term.

Often amicus brief impact is felt in policy related matters. We see this in the amicus briefs cited in several cases already this term. Reflecting this policy based importance, Justice Breyer wrote in his majority opinion in AMG Capital, “the Commission and its amici emphasize the policy-related importance of allowing the Commission to use § 13(b) to obtain monetary relief. They suggest that it is undesirable simply to enjoin those who violate the Act while leaving them with profits earned at the unjustified expense of consumers. See, e.g., Brief for Respondent 8–9; Brief for Truth in Advertising, Inc., as Amicus Curiae 7–13; Brief for American Antitrust Institute as Amicus Curiae 9–21; Brief for National Consumer Law Center et al. as Amici Curiae 10–20; Brief for Illinois et al. as Amici Curiae 5–11. They *1352 point to the billions of dollars that the Commission has returned to consumers as a result of the Commission’s § 13(b) efforts. See, e.g., Brief for Respondent 8–9; Brief for Illinois et al. as Amici Curiae 5.”

Justice Sotomayor’s concurring opinion in City of Chicago v. Fulton, also focused on the policy impact assessed in the amicus briefs. Justice Sotomayor wrote, “Drivers in low-income communities across the country face similar vicious cycles: A driver is assessed a fine she cannot immediately pay; the balance balloons as late fees accrue; the local government seizes the driver’s vehicle, adding impounding and storage fees to the growing debt; and the driver, now without reliable transportation to and from work, finds it all but impossible to repay her debt and recover her vehicle. See Brief for American Civil Liberties Union et al. as Amici Curiae 11–16, 31–32. Such drivers may turn to Chapter 13 bankruptcy for a “fresh start.” Marrama, 549 U.S. at 367, 127 S.Ct. 1105 (internal quotation marks omitted).3 But without their vehicles, many debtors quickly find themselves unable to make their Chapter 13 payments. The cycle thus continues, disproportionately burdening communities *594 of color, see Brief for American Civil Liberties Union et al. as Amici Curiae 17, and interfering not only with debtors’ ability to earn an income and pay their creditors but also with their access to childcare, groceries, medical appointments, and other necessities.”

In Niz Chavez v. Garland, the majority opinion by Justice Gorsuch and the dissenting opinion by Justice Kavanaugh quibbled about the points made in the amicus briefs. Justice Gorsuch wrote, “The dissent’s policy arguments stretch even further than the government’s. It suggests that the best way to help aliens is to rule against the alien before us. Post, at 1488 – 1489, 1495 – 1498. Unsurprisingly, however, neither Mr. Niz-Chavez nor any of the immigration policy advocates who have filed amicus briefs in this Court share that assessment.” Kavanaugh’s dissent responded, “Instead of applying that clear statutory definition of a notice to appear as written notice, the Court dismisses the definition’s relevance on a novel basis not raised by Niz-Chavez, not advanced by any amicus brief, and not adopted by any lower courts—the placement of a quotation mark.”

In his majority opinion in Google v. Oracle, Justice Breyer synthesized material from multiple amicus briefs to buffer the Court’s main argument: “Amici supporting Google have summarized these same points—points that witnesses explained to the jury. See, e.g., Brief for Copyright Scholars as Amici Curiae 25 (“[T]he portions of Java SE that Google reimplemented may have helped preserve consistency of use within the larger Java developer community”); Brief for Microsoft Corporation as Amicus Curiae 22 (“[A]llowing reasonable fair use of functional code enables innovation that creates new opportunities for the whole market to grow”); Brief for 83 Computer Scientists as Amici Curiae 20 (“Reimplementing interfaces fueled widespread adoption of popular programming languages” (emphasis deleted)); Brief for R Street Institute et al. as Amici Curiae 15–20 (describing Oracle’s reimplementation of other APIs); see also Brief for American Antitrust Institute as Amicus Curiae 7 (“Copyright on largely functional elements of software that [have] become an industry standard gives a copyright holder anti-competitive power”).”

The case with the most amicus briefs this term at 81 was Fulton v. City of Philadelphia — a case looking at whether free exercise plaintiffs can only succeed by proving a particular type of discrimination claim — namely that the government would allow the same conduct by someone who held different religious views — or whether courts must consider other evidence that a law is not neutral and generally applicable. The 81 briefs were broken down into 34 for petitioner, 46 for respondent, 1 for neither.

Most cases did not have nearly as many amicus filings as the following histogram depicts:

The bulk of the cases this term had under 25 amicus briefs with only a handful having 40 amicus briefs or more.

The breakdown by case is as follows:

There are a striking number of amicus filings this term supporting neither party. Two cases, Minerva Surgical and Federal Republic of Germany v. Philipp both had four amicus briefs filed for neither party each. The cases with the most overall amicus briefs were Fulton v. City of Philadelphia, Google v. Oracle, Americans for Prosperity Foundation v. Bonta, and California v. Texas. On the other end of the spectrum zero briefs were filed in Salinas v. United States Railroad Retirement Board.

Finally, we see many repeat amicus players throughout each term. The following graph shows the most prolific filers this term in terms of absolute filing count. This only shows groups with at least three amicus filings.

The ACLU and Cato Institute led all filers with 14 amicus briefs on the merits this term. They are followed by National Association of Criminal Defense Lawyers with 13, and the U.S. Chamber of Commerce and Americans for Prosperity each with 12. The group Americans for Prosperity is especially notable as not only were they one of the top amicus filers this term, but they also had 52 amicus briefs filed in the case where they were the petitioning party.

These most involved interest groups are some of the more ideological as well and we can gather that their ideological goals are reflected in their briefs to the Court. As groups from the left and right balance each other out in terms of overall filings, the justices have a vast array of material to study, to support their points, and to bolster their arguments whether they are ideologically valenced or not.


Click here for data from the post

Find Adam on Twitter @AdamSFeldman

Leave a Comment