Supreme Court Ditches Amicus Consent Requirement

By Lawrence S. EbnerDecember 7, 2022

Atlantic Legal Foundation is a frequent filer of Supreme Court amicus briefs

The Supreme Court on December 5 announced revisions to its rules—including elimination of the requirement that an amicus curiae obtain either the parties’ consent or the Court’s permission prior to filing its friend-of-the-court brief.

“Deleting the consent requirement reflects how commonplace the filing of amicus briefs has become in the Supreme Court. The federal courts of appeals should follow the Supreme Court’s lead and do the same.” — Lawrence S. Ebner, Founding Member, Capital Appellate Advocacy PLLC and Executive Vice President & General Counsel, Atlantic Legal Foundation

The Supreme Court Clerk commented that “[w]hile the consent requirement may have served a useful gatekeeping function in the past, it no longer does so, and compliance with the rule imposes unnecessary burdens upon litigants and the Court.”

As a frequent filer of Supreme Court amicus briefs at both the petition and merits stages, ALF submitted a letter to the Clerk of the Court last April in response to his request for comments on the proposal to eliminate the consent requirement.

ALF’s letter offered several key points in support of the rules change, including the following:

  • “A requirement to obtain the parties’ consent for the filing of an amicus brief is inconsistent with the true purpose of such a brief: serving as a friend of the Court.”
  • “The benefit to the Court of an amicus brief that provides helpful, non-duplicative legal argument, or additional perspective or information relevant to the question presented, should not be dependent upon the parties’ consent.”
  • “Amicus briefs serve the additional important function of opening our nation’s judicial process at the highest level to any organization or individual with an interest in the question presented by an appeal.”

The rules changes take effect on January 1, 2023.

Larry Ebner has written extensively about amicus briefs. His latest article, How To Draft An Amicus Brief That Actually Gets Read, provides practical procedural, stylistic, and substantive tips to amicus brief authors.