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“Those who pay lawyers to prepare such briefs are not getting their money’s worth.” That provocative sentence comes — as do many provocative sentences — from Circuit Judge Richard Posner. It appears in an Aug. 6 opinion in which Judge Posner explains why, acting as a single-judge motions panel, he denied the speaker of the Illinois House of Representatives, the president of the Illinois Senate, and others leave to file amicus briefs in support of certain telephone companies in a case pending in the U.S. Court of Appeals for the 7th Circuit. The validity of an Illinois statute is at issue in Voices for Choices v. Illinois Bell Telephone Co., but Judge Posner did not think that the brief tendered on behalf of legislators who passed the law added anything of value to the parties’ own briefs. In fairness, Judge Posner was not saying that all amicus briefs are a waste of clients’ money. The provocative sentence quoted above follows this observation: “In my experience in two decades as an appellate judge . . . , it is very rare for an amicus curiae brief to do more than repeat in somewhat different language the arguments in the brief of the party whom the amicus is supporting.” Well, yes, repetitive briefs may be wasteful, and it is hard from the advocates’ side of the bench to quarrel with what a leading federal judge says his experience tells him. Hard, but not impossible. For there is evidence that the 7th Circuit in general, and Judge Posner in particular, may be finding only what they look for when they take a quick and skeptical glance at amicus briefs. A more sympathetic look might reveal that amici do offer different views. By setting the bar too high, the 7th Circuit may be missing valuable input. ‘UNIQUE PERSPECTIVE’ The 7th Circuit has published at least three opinions expressing a relatively unfriendly attitude toward amicus briefs. Voices for Choices is the latest, preceded by Ryan v. Commodity Futures Trading Commission (1997) (Posner, J., in chambers) and National Organization for Women Inc. v. Scheidler (2000) (Posner, J., for a unanimous three-judge panel). Other circuits generally have not published opinions explaining their practices with regard to accepting amicus briefs. But most, if not all, other circuits are far more accepting than the 7th; and in Neonatology Associates, P.A. v. Commissioner (2002), the 3rd Circuit explained its relatively amicus-friendly practice in an unpublished opinion that cites and disagrees with Ryan and Scheidler. The 7th Circuit’s Scheidler opinion merits a closer look. The court denied leave to file three amicus briefs in support of anti-abortion protesters who had been found civilly liable under the Racketeer Influenced and Corrupt Organizations Act for “extortion.” The court set out three categories of amicus briefs it would find useful, but deemed the tendered briefs to fall into none of those categories. In particular, the court did not believe that any of the putative amici had “a unique perspective, or information, that c[ould] assist the court of appeals beyond what the parties are able to do.” Without the perspective of the would-be amici — including the Southern Christian Leadership Conference — a 7th Circuit panel (which did not include Judge Posner) proceeded to affirm the imposition of civil liability. The 7th Circuit did not, however, have the last word on Scheidler, either with respect to the amici or the merits. The defendants filed a petition for a writ of certiorari. Some five amicus briefs were tendered in support. The Supreme Court accepted all the amicus briefs, and granted the cert petition. In particular, the Court granted the Southern Christian Leadership Conference and several others, led by the Seamless Garment Network, leave to file a brief written by one of the same lawyers whose brief had been rejected in the 7th Circuit. The Seamless Garment Network brief at the cert stage — and the somewhat expanded version of that brief, filed for a slightly different coalition of amici, at the merits stage — was a remarkable document. Using historical research not found in the parties’ briefs, it argued that the 7th Circuit’s reasoning would catch too many protest activities within its net. The brief further argued that the drastic civil RICO remedies would have effectively shut down many protest movements throughout history that, in retrospect, are venerated as just causes. Not only did the brief present arguments different from those advanced by the parties, but the amici had a credibility in making those arguments that the parties might have lacked. The Seamless Garment Network, People for the Ethical Treatment of Animals, and other amicus briefs that the Supreme Court allowed spoke on behalf of organizations and individuals with widely diverse interests and agendas. But all were united in their view that protest activities play an important role in social change, and that legal doctrine should not be treated malleably to silence disfavored points of view. No one but the justices can say for certain what influenced the Supreme Court (I presented the oral argument for the defendants), but the Court concluded, by a lopsided 8-1 margin, that the defendants could not be held civilly liable for extortion or RICO violations. A footnote in Justice Ruth Bader Ginsburg’s concurring opinion observed that the theory of RICO liability urged by the plaintiffs could have led to imposition of liability for civil rights sit-ins in the 1960s. It seems highly likely that the Court was influenced by its desire not to chill such protests. The information in the Seamless Garment Network brief may thus have helped the Court reach its decision. ‘TO ASSIST THE COURT’ Scheidler‘s history is of some interest given Judge Posner’s favorable citation in Voices for Choices of the earlier Scheidler decision to deny leave to file amicus briefs. But it is, by no means, the only important recent example of influential amici that aided a court’s understanding. In the two blockbuster cases of the most recent Supreme Court term, Lawrence v. Texas and Grutter v. Bollinger, the Court openly acknowledged its debt to amici. Justice Anthony Kennedy’s opinion for the Court in Lawrence, invalidating a Texas statute criminalizing “homosexual sodomy,” cited “the scholarly amicus briefs filed to assist the Court in this case.” Justice Kennedy specifically identified four such briefs in the body of his opinion. The briefs for the American Civil Liberties Union, the Cato Institute, and “professors of history” all argued that the Court had misunderstood the history of sodomy regulation in Bowers v. Hardwick (1986), which Lawrence overruled. The brief of former United Nations High Commissioner for Human Rights Mary Robinson and others informed the Court that “[t]he right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries.” Whether the Court should have been influenced by those briefs is an interesting and controversial question of constitutional jurisprudence, but they at least constitute an effective rejoinder to the notion that clients rarely get “their money’s worth” from amicus briefs. Justice Sandra Day O’Connor’s opinion for the Court in Grutter, upholding the University of Michigan Law School’s affirmative action program, contains a whopping nine citations to eight different amicus briefs. (Again, both the constitutional holding and the reliance on amicus briefs may be controversial, but it is hard to deny the influence of such briefs when the Court itself said it was influenced.) Among the briefs Justice O’Connor cited were two filed on behalf of major corporations, and one filed on behalf of “high-ranking retired officers and civilian leaders of the United States military” touting the virtues of a “highly qualified, racially diverse officer corps.” So it is hard to accept the notion — if intended to apply generally — that clients do not get their money’s worth out of amicus briefs. To be sure, one could respond that the highest-profile cases in the highest court of the land produce both the most numerous and the most useful briefs. But Scheidler demonstrates that the 7th Circuit’s skeptical view may lead it to fail to recognize those amicus briefs that really are useful, those cases that really are important, and those arguments that really are unique. ‘EXTRANEOUS READING’ Judge Posner’s opinion in Voices for Choices, summarizing the 7th Circuit’s Scheidler opinion, gives other reasons for being skeptical of amicus briefs: “[J]udges have heavy caseloads and therefore need to minimize extraneous reading; amicus briefs, often solicited by parties, may be used to make an end run around court-imposed limitations on the length of parties’ briefs; the time and other resources required for the preparation and study of, and response to, amicus briefs drive up the cost of litigation; and the filing of amicus briefs is often an attempt to inject interest group politics into the federal appeals process.” All those points have some merit. Yet one must wonder whether the 7th Circuit’s frequent denial of leave to file amicus briefs constitutes an overreaction. The need to minimize “extraneous” reading cannot justify a refusal to accept briefs unless they really are “extraneous,” which, as I’ve argued, many are not. A litigant who relies on amici to make “an end run” around page or word limitations does so at its peril, considering that judges have no obligation to read amicus briefs carefully just because they accept them. The fact that a party solicits amicus briefs is a curious objection: Who, in petitioning any branch of the government for redress, doesn’t legitimately want as many (and diverse) friends as he or she can find? If the objection is that the parties actually fund or ghost-write amicus briefs — as opposed to merely soliciting them — that could be dealt with by a rule like Supreme Court Rule 37.6, which requires disclosure of any authorship or funding of an amicus brief by a party. The last two objections — that amicus briefs drive up the cost of litigation, and that they “attempt” to make the judicial process political — have at least a grain of truth. But the cost of listening (and responding) to diverse viewpoints is not ordinarily thought a sufficient objection in a society that trusts in the “marketplace of ideas” to sort out worthy from unworthy arguments. Amicus briefs are an extremely minor factor among the many elements — the discovery process, for example — that drive up litigation costs. And the proper way to keep the judicial process from becoming politicized is for judges to differentiate on the merits between legally sound and overly political arguments, not to mistrust — and refuse to listen to — anyone who might be trying to make a political statement. Judge Posner is undeniably brilliant, and his thoughtful views on why many amicus briefs are wasteful (or worse) deserve attention. Yet a priori skepticism about amici can lead courts just as far astray as any possible undue influence an amicus brief might yield, and an amicus brief that is truly a waste of time can be skimmed and tossed very quickly. A less doubting approach to the acceptance of amicus briefs — the approach that prevails in the Supreme Court, and generally in the other circuits — is warranted. Roy T. Englert Jr. is a partner in the D.C. firm of Robbins, Russell, Englert, Orseck & Untereiner. Englert has argued 14 cases before the Supreme Court and countless others before federal appellate courts and has written his share of amicus briefs.

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