Insight: The Supreme Court Proposes to Ditch the Amicus Brief Consent Requirement

Note: On December 5, 2022 the Supreme Court eliminated its amicus brief consent requirement as reported by Atlantic Legal Foundation: Supreme Court Ditches Amicus Consent Requirement

On April 5, 2022, ALF filed comments applauding the Supreme Court’s proposal to eliminate the requirement to obtain the parties’ consent, or the Court’s permission, to file an amicus brief. ALF Executive Vice President & General Counsel Larry Ebner has written an insightful article about this development for The Brief Case, an online publication of DRI-The Voice of the Civil Defense Bar, a national professional organization where Larry serves as vice-chair of the Center for Law and Public Policy.

Larry’s article raises a fundamental point about amicus briefs:

Since the purpose of an amicus brief is to benefit the Court (as well as the supported party), its submission should not be dependent, even in theory, on the other side’s consent. Elimination of the consent requirement implies that the Court welcomes amicus briefs. The Court grants review in cases involving important legal issues that often transcend the immediate interests of the litigating parties. It makes sense, therefore, to afford all interested organizations and individuals a voice on such issues.

For more than 45 years, ALF has engaged in an active amicus curiae program, filing briefs in the Supreme Court, federal courts of appeals, and state appellate courts on some of the most important legal issues encompassed by ALF’s mission areas.

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