• Erin L. Webb

The Role of the “Green Brief”: How to Be a Good Friend to the Court

Judge Emmet G. Sullivan of the U.S. District Court for the District of Columbia recently ruled that amicus briefs could be filed in United States v. Flynn, No. 1:17-cr-00232 (D.D.C.), a very rare occurrence at the federal trial court level. The Minute Order appeared on the case docket yesterday.

Judge Sullivan noted that the court has discretion to allow amicus briefs or to deny them, including in criminal cases, despite the fact that there is no specific rule of criminal procedure governing amicus briefs. Min. Order, United States v. Flynn, No. 1:17-cr-232 (EGS)(D.D.C. May 12, 2020). Citing another similar case, Judge Sullivan noted that “‘while there may be individuals with an interest in this matter, a criminal proceeding is not a free for all.’” Id. (quoting Min. Order, United States v. Stone, No. 19-cr-18 (ABJ) (D.D.C. Feb. 28, 2019)).

While an amici appearance at the trial court level, particularly in a criminal case, is uncommon, amicus briefs are frequently filed in appellate courts: not just the United States Supreme Court, but state courts of last resort and federal and state intermediate appellate courts as well.

What makes a good amicus brief, and how can a drafter avoid filing a “me too” brief? The goal is always to avoid a repetitive paper that simply burdens the court, but instead takes a different angle or new approach that sheds unique light on the question presented.

Amici, as non-parties to the disputed case, can often make arguments that parties cannot. In addition, amici can draw courts’ attention to broader policy implications of particular rulings. Below are some roles a good amicus brief (sometimes called a “green brief” because of the cover’s required color at the U.S. Supreme Court) can play in an appeal effort.

Amici Can Say What a Party Can’t

As non-parties, amici curiae, or “friends of the court,” can often make arguments in their briefs that parties are unable to do for myriad reasons. There are three main reasons a party on appeal may be constrained from making particular arguments.

First, it simply may cut against or distract from a party’s strategy to make a certain argument. For example, a group of retired Article III judges filed an amicus brief in a Supreme Court immigration case, Sessions v. Dimaya, 138 S. Ct. 1204 (2018), which sought to resolve whether certain immigration statutes were unconstitutionally vague. The judges’ brief was able to give voice to concerns about judicial interpretation in a way that a party might avoid, so as not to appear overly critical of the bench:

It is exceedingly unlikely that any of the administrative or Ninth Circuit judges hearing Dimaya’s case had any significant experience — either judicial or otherwise — with violations of California Penal Code Section 459 that could serve as their guide in answering this question. To paraphrase Judge Kozinski’s frustrations with Section 16’s residual clause, how were the judges in Dimaya’s case “supposed to figure out” whether violations of California Penal Code Section 459 ordinarily involve the substantial risk of the use of force: “A statistical analysis of the state reporter? A survey? Expert evidence? Google? Gut instinct?”

Brief of Retired Article III Judges as Amici Curiae In Support Of Respondent at 7 (citation omitted).

The Court did, in fact, find the statute in question unconstitutionally vague. Sessions, 138 S. Ct. at 1223. Though the judges’ amicus brief was not cited, the majority opinion did rely on a brief from the National Immigration Project of the National Lawyers Guild, which cited divided appellate decisions nationwide as to whether several different types of crimes qualified as a “violent felony under the statute in question. Id. at 1222.

Second, a particular argument simply may not fit into a party’s brief for space reasons. There may be many compelling reasons to rule in a party’s favor, but given page limit constraints, parties must prioritize. Amici are free to focus on secondary but compelling arguments that could persuade a court. For example, an amicus brief focusing on the history and development of a particular statute or area of law can provide useful background and context that might not otherwise be able to be included. The Historians of Marriage and the American Historical Association filed an amicus brief in Obergefell v. Hodges, 135 S. Ct. 2584 (2015) that delved much deeper into the history of marriage than the main parties would have had space to do in their briefs on the merits. The brief was cited by the Court in its final opinion. 135 S. Ct. at 2596. An amicus brief can be completely devoted to an issue that seems like a distraction in a brief on the merits, but adds important background or understanding to an issue.

Third, a party may lack the specialized expertise necessary to make an impact on a particular point. For example, the American Psychological Association and the Missouri Psychological Associate filed an amicus brief in Roper v. Simmons, 543 U.S. 551 (2005), discussing behavioral research concerning brain development in juveniles, as part of the Court’s review of the question whether capital punishment could constitutionally be applied to under-18 offenders.

Fourth, a brief from an “unusual suspect,” or a party that generally would not be expected to take a certain position, can provide an element of surprise and interest that can potentially illustrate the strength of a party’s argument. For example, an amicus brief co-signed by retired military members in one of the Guantanamo Bay cases, Rasul v. Bush, 542 U.S. 466 (2004), sought to:

explain to the Court the profound ramifications, from a military point of view, of the government’s position that no court can decide whether foreign prisoners at the United States Naval Base at Guantanamo Bay, Cuba may be held there without any charges being brought against them and without being afforded a hearing by a “competent tribunal” to determine their status, as required by U.S. military regulations and the Geneva Conventions of 1949.

Brief Amicus Curiae of Retired Military Officers at 1, Interest of Amicus Curiae.

Amici Can Represent Views of Affected Non-Parties

Another important role an amicus brief can play is to make a policy point on behalf of an impacted population or industry. In fact, groups of amici often collaborate to give a collective voice to their interests via an amicus brief. A good example of this is the amicus briefs filed by the military and industry amici in the Grutter v. Bollinger, 539 U.S. 306 (2003) and Gratz v. Bollinger, 539 U.S. 244, 305 (2003) cases before the United States Supreme Court, advocating for diversity considerations in college admissions. These briefs were cited by the Court in Grutter. 539 U.S. at 331.

In addition, amici can point out the impact of a potential ruling on other pending or prospective cases involving the same issues. Such briefs can provide perspectives of non-parties in trying to convince a court that it should hear a discretionary appeal. In my insurance coverage practice, groups of policyholders on the one hand, and groups of insurers on the other, often seek to weigh in on key insurance issues before appellate courts.

As another example, the National Consumer Bankruptcy Rights Center (“NCBRC”) and the National Association of Consumer Bankruptcy Attorneys (“NACBA”) filed an amicus brief seeking to persuade the Supreme Court to hear Smith v. IRS, No. 16–497, which involved the question whether tax debts of late filers are dischargeable in bankruptcy. The association amici argued that the issue “directly implicates the interests of the consumers whose rights NCBRC and NACBA support” in pending and prospective bankruptcy cases. Brief of the NCBRC and the NACBA As Amici Curiae In Support of Certiorari at 2. (The petition was denied.)

There are a variety of perspectives and approaches that are possible in amicus briefs. It is important to be original and to add substance to the discussion before the court, whether that be in the form of technical expertise, policy consideration, historical perspectives, or other points. Avoiding “piling on” and simply repeating the arguments of the parties on the merits is a way to be a true “friend” to the court and make an amicus brief worthwhile.

Erin L. Webb is an insurance coverage attorney, appellate attorney, and litigator. She has been involved in amicus efforts before the United States Supreme Court (including the Roper v. Simmons decision, though not the amicus brief referred to above), the high courts of California and Ohio, and other appellate courts.

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