By Mary-Christine Sungaila
Amicus curiae or "friend of the court" briefs are now filed in a majority of United States Supreme Court cases and various state supreme courts. In the Supreme Court's 1965-66 term, amicus briefs were filed in 35 percent of cases; by 1995, amicus briefs were filed in nearly 90 percent. (See Sungaila, Effective Amicus Practice Before the United States Supreme Court: A Case Study (1999) 8 S. Cal. Rev. L. & Women's Stud. 187, 188, fns. 4-6.) Analysis of the 1999 to 2008 terms shows that in civil cases the average filing rate for amicus briefs was 92.4 percent. (See Sungaila, A Friend in Need is a Friend Indeed: The Increased Prevalence and Influence of Amicus Briefs (March 2010) International Association of Defense Counsel Appellate Practice Committee Newsletter.)
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The Supreme Court's citation to amicus briefs has also increased. One study, covering cases from 1969 to 1981, reported such citations 18 percent of the time. (O'Connor & Epstein, Court Rules and Workload: A Case Study of Rules Governing Amicus Curiae Participation (1983) 8 Just. Sys. J. 35, 42-43.) Another study, covering 1986 to 1995, reported 37 percent, with a 15 percent figure for cases citing an amicus brief by name. (Lynch, Best Friends? Supreme Court Law Clerks on Effective Amicus Curiae Briefs (2004) 20 J.L. & Pol. 33, 35.)
In recent years, the Court has more directly acknowledged the helpfulness of amicus briefs. On one occasion, the Court directed counsel for the parties to be prepared at oral argument to address a point made only by an amicus. In December 2014, in Dart Cherokee Basin Operating Co., LLC v. Owens (2014) 135 S.Ct. 547, the Court considered and rejected a jurisdictional question raised only by Public Citizen as amicus, and then embraced an argument against presumptions of removal in the Class Action Fairness Act context urged by other amici. And in Bullard v. Blue Hills Bank, No. 14-116, a bankruptcy case argued in April 2015, the justices expressed confusion over the fact that two of the nation's largest creditors filed amicus briefs in support of the debtor but no amicus briefs were filed in support of the banks. At oral argument, Justice Kagan told counsel for the bank, "[o]ne of the things that confused me about this case, quite honestly, is why you don't have more people on your side.... [W]here where are the amicus briefs from the creditors that think your position is important...?" (Argument...
