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Groups ranging from the American Civil Liberties Union to the U.S. Chamber of Commerce are urging the Supreme Court to withdraw a proposed rule that the groups say would compromise the privacy of their membership rosters. The revised rule would require groups filing friend-of-the-court briefs with the Court to reveal whether parties in the case — or their lawyers — are members. For example, if the Chamber filed an amicus curiae brief in support of Company X, or the ACLU filed for Protester Y, the organization would have to tell the Court whether X or Y, its lawyers, or opposing lawyers, are members of the respective organization. A group of former government lawyers also objected to the rule’s proposal that would, in cases in which the United States is a party, require amicus groups to research and reveal whether lawyers in the solicitor general’s office listed on the government brief are members. “Forced disclosure of such information would . . . intrude significantly on the privacy interests of career government attorneys,” said the group, led by former Assistant to the Solicitor General James Feldman. The rule appears aimed at preventing parties from being able to mastermind and file, in effect, two briefs with the Court — one in their own name and the other under the name of an amicus group. But the groups that are objecting to the rule say it will instead have “a serious chilling effect” on membership, in the words of a joint letter filed by the National Chamber Litigation Center and the National Association of Manufacturers. Robin Conrad, executive vice president of the chamber litigation center, the Chamber’s litigating arm, says the rule would “erode abruptly one of the principal benefits provided by associations such as ours, namely amicus advocacy in Supreme Court proceedings.” Corporations would be reluctant to join trade associations if they thought their membership might be revealed in the contest of Supreme Court briefings, says the letter by Conrad and NAM general counsel Jan Amundson. In advocating their positions before government agencies, companies “rely on us to carry forward their message so that they will not be directly and publicly identified as supporting a particular view.” Exposed companies can become targets of “boycotts, strikes, [and] adverse publicity,” they write. Conrad says the Court’s current rule, which merely requires amicus groups to report whether a party or its counsel authored the amicus brief, has been a “strong and effective” way of discouraging parties from controlling the content of amicus briefs. For their part, the ACLU and the Public Citizen Litigation Group also filed a joint letter objecting to the new rule. “Public disclosure of their private membership should not be the price of bringing or litigating a case in the Supreme Court,” the letter stated. Steve Shapiro, legal director of the 550,000-member ACLU, says in an interview, “Requiring us to go through our entire membership rolls does not, I think, get at what the Court is interested in, namely double-dipping briefs.” The Court clerk’s office solicited public comment on the rule changes on May 14 and said revised rules will take effect Aug. 1. A group of 41 appellate advocates, led by David Gossett, a partner at Mayer, Brown, Rowe & Maw, sent a letter that suggested a possible wording that would be less intrusive. The practitioners also commented on a range of other rule changes, including a proposal to require that briefs use New Century Schoolbook 12-point type instead of the current 11-point Roman type. “Some question whether it is wise for the Court to specify as the required font a font that comes neither with Windows nor the Macintosh operating system,” the letter states, arguing that the new font would create confusion and extra costs.
Tony Mauro can be contacted at [email protected].

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