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U.S. Supreme Court Justice Ruth Bader Ginsburg had a confession to make recently: She does not read all the amicus curiae briefs filed in connection with cases before the Court. At a panel discussion sponsored by the National Association of Women Lawyers, Ginsburg said she has her law clerks arrange the briefs into three piles: must-read briefs; those she could skim or read selected pages from; and then, the “skip” pile that she does not need to read at all. The first pile, she said pointedly, is “very thin.” The largest pile, she said sheepishly, is the “skip” pile. When Justice Sandra Day O’Connor, also at the panel, indicated that she too does not read all the amicus briefs, it became easy to wonder whether, instead of confessing an embarrassing fact, they were merely stating the obvious: that too many briefs are clogging the justices’ inboxes. Still, when two justices offer this kind of insight into how they handle cases, it is worth paying heed. As Ginsburg put it, “There are many friends of the Court — sometimes too many to manage.” O’Connor said amici should file only when “they have something useful to say.” Ginsburg singled out the “me-too” briefs that merely tell the Court that an organization is on one side or the other of the case and concerned about the outcome. “I don’t see why they don’t consolidate,” she said. Two current experts on amicus curiae practice agreed with the justices’ expressions of concern. “Surely there is an awful lot of crap out there,” says Columbia University Law School professor Thomas Merrill, who coauthored a 2000 University of Pennsylvania Law Review article that documented an 800 percent rise in the number of amicus brief filings during the last 50 years. Merrill sees several causes for the trend — including, paradoxically enough, the decrease in the number of cases the Court is deciding each term. Given the “glamour aspect” of Supreme Court practice, Merrill says, lawyers who want a piece of the action must find amicus, rather than direct party, clients. For these lawyers, it is not enough to be the eighth of 20 lawyers signing a joint amicus brief, so they bravely fly solo. As for Ginsburg’s consolidation plea, Merrill says that practical problems interfere. More and more these days, the Court is expediting the briefing schedule to fill its case-hungry argument calendar. Merrill thinks that instead of requiring interested groups to join in a single amicus brief, the fast-tracking may have the opposite, surely unintended effect; groups will write their own briefs because there is not enough time for the massaging and negotiating that sometimes goes into producing an amicus brief that several groups can agree on. Carter Phillips of Sidley Austin Brown & Wood, who often authors amicus briefs — and has also written extensively about amicus practice — agrees that the numbers are getting ridiculous. But he sees little that can be done about it without sterner Court intervention. In its rule 37, the Court already drops a strong hint to amicus filers: “An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.” The rule has failed completely to stem the flow of superfluous briefs, Phillips says. For too many organizations, the filing of a brief has become “a way of attracting more resources and more members,” Phillips says, because it signals that the organization is a player in Washington, D.C. With fewer cases in which to wave their flag, these organizations feel compelled to file in cases they might have passed on before. The result, at times, is a beauty contest, in which parties seek to exceed their adversary’s brief count. “That’s not how the Court decides a case,” Phillips says. The problem is not brand-new, he notes. When he clerked for the late chief justice Warren Burger in 1978, he recalls, amicus briefs could easily be converted by overworked law clerks into Frisbees: “We’d see who could get them into a wastebasket first.” As a more recent example of the proliferation of briefs, Phillips offers a case he argued just last October: Norfolk Southern Railway Co. v. Kirby, a fairly obscure but important maritime dispute over liability for damages at different stages of a shipment’s journey (a Himalaya Clause case, if that means anything to you). “Eighteen amicus briefs were filed!” exclaims Phillips. “It was mind-numbing.” Phillips, who represented the winning party, Norfolk Southern, says he urged some of the amici to join together: “At some point, when you are the party, you don’t need so much clutter. Two or three would be fine.” He was somewhat successful, he says, “but there is nothing you can do if somebody feels the need to file.” All those briefs become a burden to the parties’ advocates, not just the justices, Phillips says. He feels the need to read all the amicus briefs, in case a justice asks a question based on one of them. Ultimately Phillips believes amicus briefs still serve a valuable role for the justices — and their clerks, who in reality are the first, and often the only, people to read them inside a justice’s chambers. “Law clerks really are little sponges,” he says. Briefs that tell the Court about a case’s real-world implications are important, as are those that signal the importance of the case by displaying the “strange bedfellows,” the seemingly adversary groups, that file on the same side. Phillips also sees value in the filings he labels as “whatever you do, just don’t hurt me” briefs. He recalls once filing a brief on behalf of the Cayman Islands in a 1988 case, Doe v. United States, that could have affected the confidentiality of banking records, for which Cayman banks are famous. When the Court ruled, it added a footnote explicitly stating that it was not addressing “international comity” issues that could flow from the decision. “It is quite clear that this footnote would not exist but for the brief of the Cayman Islands,” Phillips says. At the women lawyers’ conference in December, O’Connor also agreed that as voluminous as they may be, amicus briefs are important — especially for someone like her who “went to law school in the Dark Ages. We didn’t even have IP courses then.” In tax cases, for example, O’Connor said she would welcome a brief in which a tax professor warns the Court not to make a “catastrophic mistake” in some tax case: “I’m going to read it.” Ginsburg agreed and put a name to O’Connor’s example: Wayne Barnett. O’Connor nodded vigorously. Neither elaborated, but they were referring to Stanford Law School professor Wayne Barnett, who filed an amicus curiae brief on his own behalf in the 1983 case, Commissioner v. Tufts. The case settled a dispute over the taxation of partnership sales. Now retired and living in Seattle, Barnett was pleased to hear the justices remembered his brief — even though Ginsburg was not on the Court at the time he filed it. He guessed that she might know about the brief through her husband, Martin, another noted tax law professor he has known for many years. O’Connor, he recalled, cited his brief in a concurring opinion. “That’s why she remembered it,” he says. Barnett recalls filing the brief as an amicus to the taxpayer in the case because “I had been berating the [government's] doctrine at issue in my teaching, so I thought I might as well get my views before the Court.” But as memorable as Barnett’s brief apparently was, there’s an ironic punch line. True, O’Connor appreciated Barnett’s brief and cited it favorably in her concurrence — the fervent dream of all amicus filers. But she still sided with the government, as did the rest of the Court. The vote was unanimous.

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