Key Takeaways

• The United States Court of Appeals for the Seventh Circuit recently issued a decision providing new guidance on how to draft amicus briefs that the court will accept for filing.
• The court stressed the need to “add value” and “offer something different,” providing eight specific examples of how amici might assist the court, discussed in further detail in the OnPoint.

The filing of amicus or “friend of the court” briefs before appellate courts has become more common in recent years. During the Supreme Court’s 2019 Term, for example, an average of twelve amicus briefs were filed in each merits case.¹ By way of comparison, only six amicus briefs were filed in Brown v. Board of Education.² But judges have differed on whether and when the briefs are useful. Although Justice Stephen Breyer has publicly commented on their “important role in educating judges on potentially relevant technical matters,”³ Judge Richard Posner has lamented their tendency to “duplicate the arguments made in the litigants’ briefs” and characterized redundant amici as “an abuse.”⁴ A recent opinion from the United States Court of Appeals for the Seventh Circuit has helpfully provided additional guidance for litigants on how to draft amicus briefs that add value.

In Prairie Rivers Network v. Dynergy Midwest Generation, LLC, Judge Michael Scudder, Jr. issued an “in chambers” opinion permitting the filing of three amicus briefs in an appeal addressing whether the Clean Water Act regulates groundwater.⁵ In the process, Judge Scudder provided key guidance on when an amicus brief is beneficial to the court’s decision-making. Specifically, Judge Scudder stressed that an amicus brief should not merely be a “copycat,” but “seek to add value” and “strive to offer something different, new, and important.”⁶ In especially valuable guidance, Judge Scudder listed eight specific ways an amicus might assist the court:

• Offering a different analytical approach to the legal issues before the court;
• Highlighting factual, historical, or legal nuance glossed over by the parties; 
• Explaining the broader regulatory or commercial context in which a question comes to the court;
• Providing practical perspectives on the consequences of potential outcomes;
• Relaying views on legal questions by employing the tools of social science;
• Supplying empirical data informing one or another question implicated by an appeal;
• Conveying instruction on highly technical, scientific, or specialized subjects beyond the ken of most generalist federal judges; 
• Identifying how other jurisdictions—cities, states, or even foreign countries—have approached one or another aspect of a legal question or regulatory challenge. 

As Judge Scudder explained, the court found that the three amicus briefs before it each added something new that could help the court, even though they also included “some unnecessary and unwelcomed (but perhaps inevitable) repetition.”⁸ One brief, for example, discussed the history of Illinois groundwater regulation, while another highlighted how an alternative federal scheme might apply.⁹ The key was that these briefs were “additive” rather than merely “a show of hands on what interest groups are rooting for what outcome.”¹⁰ Thus, the court granted leave to file.

The Seventh Circuit’s guidance on amicus briefs in Prairie Rivers is especially helpful because, as the opinion itself noted, “the guidance for prospective amici is sparing.”¹¹ The federal rule governing amicus briefs states only that a party seeking leave to file must explain “the reason why an amicus brief is desirable and why the matters asserted are relevant to the disposition of the case.”¹² But it does not suggest what might make an amicus desirable or a matter relevant. The Supreme Court Rules provide slightly more guidance, averring that “[a]n 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” although one “that does not serve this purpose burdens the Court, and . . . is not favored.”¹³ Judge Scudder’s in chambers opinion, with its detailed examples, gives more insight into what courts might be looking for when evaluating potential amici. Given all of that, litigants and their appellate counsel, not just in the Seventh Circuit but in state and federal appellate courts throughout the country, would do well to keep those criteria in mind when crafting amicus briefs. And, as a final thought, Judge Scudder also shared an insight that we tried to heed here as well: A “good amicus brief does not have to be long. Indeed, shorter is often better.”¹⁴

Footnotes

1) Adam Feldman, Empirical SCOTUS: About this Term: OT 2019, SCOTUS Blog (Feb. 12, 2020).

2) Anthony Franze & R. Reeves Anderson, Supreme Court Amicus Curiae Review: ‘Friendsof the Court’ Roared Back in 2017–18 Term, NAT’L L. J (Oct. 16, 2018). 

3) Justice Breyer Calls for Experts to Aid Courts in Complex Cases, N.Y. TIMES, at A17 (Feb. 18, 1998). 

4) Ryan v. Commodity Futures Trading Com’n, 125 F. 3d 1062, 1063 (7th Cir. 1993). 

5) No. 18-3644, 2020 WL 5867923, at *1-2 (7th Cir. Oct. 2, 2020).  

6) Id. 

7) Id. at *2. 

8) Id. 

9) Id.  

10) Id. 

11) Id. 

12) Fed. R. App. P. 29 

13) S. Ct. R. 37. 

14) 2020 WL 5867923, at *4.