When the judiciary makes rules of procedure, it shouldn’t endorse partisan attacks on the courts.
When the judiciary makes rules of procedure, it shouldn’t endorse partisan attacks on the courts.
W ar, said Clausewitz, is politics by other means. The Judicial Conference of the United States is not supposed to be politics by other means. Yet, new amendments proposed by its Advisory Committee on Appellate Rules are an open effort to advance through rulemaking a partisan and ideological agenda that could not pass Congress. The proposed rules would add onerous and potentially unconstitutional new disclosure requirements for amicus curiae briefs filed in federal court. The Advisory Committee admits that it wrote the rules in response to legislation proposed by Democratic Senator Sheldon Whitehouse, the Senate’s leading conspiracy theorist and a vocal populist critic of rule-of-law courts. The Advisory Committee shouldn’t be in the business of helping reckless partisans impugn the integrity of the legal system.
The Rulemaking System
The promise of rulemaking by “expert” institutions is that some non-political tasks are better handled by experienced professionals who know their industry or field of study than by generalists who represent the public. That can be true so long as professional bodies stick determinedly to their knitting. In today’s feverish political climate, that has gotten harder than ever. Time and again, the hydraulic pressure of partisanship and/or ideology drives expert bodies to forfeit their claims to immunity from politics — and, therefore, the legitimacy of their right to rule outside of politics — by getting political themselves.
The story is a little more complicated in the case of the Judicial Conference, due to concerns over the separation of powers. In the absence of legislation, courts have inherent power — by the very nature of a court system — to make and enforce rules of procedure and evidence and control how cases get presented in court. Rather than press the question of how far Congress can go to dictate such rules by legislation, Congress enacted in 1934 the Rules Enabling Act, 28 U.S.C. § 2071-2077, under which the courts oversee a rulemaking process that Congress can override, but does not otherwise manage:
Advisory Committees on Appellate, Bankruptcy, Civil, Criminal, and Evidence Rules evaluate suggestions (i.e. proposals) for rules amendments in the first instance. If an advisory committee pursues a proposal, it may seek permission from the Standing Committee to publish a draft of the contemplated amendment. Based on comments from the bench, bar, and general public, the advisory committee may then choose to discard, revise, or transmit the amendment as contemplated to the Standing Committee. The Standing Committee independently reviews the findings of the advisory committees and, if satisfied, recommends changes to the Judicial Conference, which in turn recommends changes to the Supreme Court. The Court considers the proposals and, if it concurs, officially promulgates the revised rules by order before May 1, to take effect no earlier than December 1 of the same year unless Congress enacts legislation to reject, modify, or defer the pending rules.
The committees are typically chaired by a federal judge, with a law professor serving as “reporter” — an influential position, upon whom much of the work devolves — and members drawn from the bar, the federal and state bench, and the academy. All of these positions are appointed by Chief Justice John Roberts and serve six-year terms. The chair of the Advisory Committee on Appellate Rules, Jay Bybee, is a senior judge on the Ninth Circuit, appointed by George W. Bush. The reporter is Seton Hall law professor Edward Hartnett.
The Campaign
Senator Whitehouse and his devotees on the legal left have been engaged in a years-long campaign to paint the federal courts as having been corrupted by conservatives and big business, so as to discredit and delegitimize rulings with which they disagree. One prong of that campaign involves painting amicus briefs as some sort of sinister signaling device to tell judges when to rule in favor of certain parties.
This is arrant nonsense. Of course, amicus briefs can matter, and so can the identities of the people and groups filing them. But we should be realistic about why. Especially at the levels of litigation below the Supreme Court, the mere fact that amicus briefs are filed signals that somebody thinks the case is important enough to affect people not before the court. Often that somebody is a state government, a trade group for an industry or for business in general (such as the Chamber of Commerce), a labor union, or a church or other nonprofit, an issue advocacy group (e.g., the ACLU or the NAACP) — the whole range of interest groups on the whole range of issues, left, right, and center. Sometimes, it may be a coalition of academics whose reputations may or may not be known to the court. Because the parties to a case are tied to arguing who should win when the law is applied to the facts of the case, amicus briefs typically seek to do one of two things: make legal arguments about the principle of law involved, as it applies beyond the facts of the particular case, or explain how a legal ruling will affect the interests of people other than the litigants.
The latter role does sometimes involve speaking with the authority of the people or groups filing the brief, and not just invoking the power of the legal arguments themselves. For example, a union might explain how a particular rule affects its ability to organize, or a banking group may say things about how regulations affect the financial system, or universities may argue that a particular ruling affects their admissions policies. But even then, judges can assess the strength of those assertions based upon what they know about a particular group’s interests in general.
But those interests are typically important because these are real-world impacts, and because judges are in most cases publicly engaged people with strong views and philosophies of their own. And they know that some amicus briefs are effectively filed to take sides with a party aligned with the amicus. For example, when I was in legal practice, I worked on a number of amicus briefs for securities-industry trade associations, usually on issues of securities law. Often, those briefs were filed in cases where some of the parties were investment banks, brokerage firms, and other members of the associations. Amicus briefs could be useful in signaling that a case involved a rule that was important to the industry and explaining why, but judges are also savvy enough to recognize without the need for detailed disclosure rules that an association of Wall Street firms supporting one of their own was an informed source, but not a purely impartial one. This is the case with many different kinds of amici.
Nonetheless, the Advisory Committee openly acknowledged that its proposal to revise the rules for required disclosure by amici was triggered by Whitehouse’s partisan campaign and by his proposed bill, the “AMICUS Act”:
In October 2019, after learning of a bill introduced in Congress that would institute a registration and disclosure system for amici curiae like the one that applies to lobbyists, the Advisory Committee appointed a subcommittee to address amicus disclosures. In September 2020, the Clerk of the Supreme Court wrote to the Standing Committee on Rules of Practice and Procedure, attaching his correspondence with the Congressional sponsors of that bill. He noted that Appellate Rule 29 includes disclosure requirements similar to those of Supreme Court Rule 37.6, and that the Committee might wish to consider whether to amend Rule 29, which would in turn “provide helpful guidance” on whether Supreme Court Rule 37.6 should be amended. In February of 2021, Senator Whitehouse and Congressman Johnson wrote to Judge Bates requesting the establishment of a working group to address the disclosure requirements for organizations that file amicus briefs. Judge Bates was able to respond that the Advisory Committee on the Federal Rules of Appellate Procedure had already established a subcommittee to do so. . . . The Advisory Committee’s early focus was on a close analysis of the proposed AMICUS Act and the concerns of its sponsors. . . .
This is improper, and itself represents a blow to the rigorous integrity we expect of the Advisory Committee. The Rules Enabling Act process envisions comity between the political and judicial branches, and so it is proper for the judiciary and Congress to take some cues from one another. But Sheldon Whitehouse’s crusade against the judiciary, and his proposed legislation, are purely partisan messages with no hope of passage through Congress without a tectonic change in our rules for lawmaking. They do not reflect the considered judgment of a majority of the people’s representatives, but of a noisy faction. The members of the Advisory Committee may not share Senator Whitehouse’s agenda, and they may believe that they have found an “elegant” compromise between Whitehouse and reality, but all they have accomplished is to make clear that the Judicial Conference process can be intimidated by threats. Unsurprisingly, Whitehouse and his House co-sponsor, Hank Johnson, have cheered the proposed rules.
Notice that the Advisory Committee considers that a rule change could “provide helpful guidance” to the Supreme Court in its own rules for amicus briefs. This is the real game here: to send a message that if the lower courts can be intimidated, the Supreme Court must follow.
The Proposed Rules
The current rule, Federal Rule of Appellate Rule 29(a)(4)(E), requires three types of disclosures for amicus briefs. The first two address the reasonable concern that an amicus brief — even one highly motivated to support a party to the case — be independent of the control of a party. It thus “currently requires that most amicus briefs include a statement that indicates whether: (i) a party’s counsel authored the brief in whole or in part;” or “(ii) a party or a party’s counsel contributed money that was intended to fund preparing or submitting the brief.” The third requirement commands disclosure if “a person — other than the amicus curiae, its members, or its counsel — contributed money that was intended to fund preparing or submitting the brief and, if so, identifies each such person.”
The third prong is already intrusive, because it gets away from the core purpose of the rule: to require disclosure when an amicus is controlled by a party to the case, and is thus not an independent actor (however opinionated or biased).
The proposed rules do three main things. First, and most reasonably, an amicus organization is required to disclose if it has been in existence for less than twelve months. This is the most defensible of the rules because it is intended to target pop-up amicus groups (not longstanding trade associations or other groups) that might be created just to influence a particular case. Compliance with the rule wouldn’t require disclosure of donors, which is the particular concern that Senators Mitch McConnell, John Cornyn, and John Thune have expressed in a joint letter raising grave First Amendment concerns with the proposed rule.
Second, the rules expand the definitions used in the current rule. For example, the proposed rules now require disclosing if “a party or its counsel contributed or pledged to contribute money intended to pay for preparing, drafting, or submitting the brief” or “a party, its counsel, or any combination of parties, their counsel, or both has a majority ownership interest in or majority control of a legal entity submitting the brief.” (Emphasis added.) While these may sound like reasonable extensions of the existing disclosure requirements, they introduce some troublingly ambiguous requirements. Does it count as pledging money to file a brief if money is pledged after reviewing a list of a group’s ongoing portfolio of cases? What is a “combination” that has a “majority interest” in an association submitting a brief?
Relatedly, the proposed rules state: “An amicus brief must name any person — other than the amicus or its counsel — who contributed or pledged to contribute more than $100 intended to pay for preparing, drafting, or submitting the brief, unless the person has been a member of the amicus for the prior 12 months.” This is arguably less intrusive than the current rule, because it includes a $100 minimum and excludes longstanding members of an association. But those two limits alone add to the disclosure burdens, and they focus attention on whether the entire disclosure project conflicts with governing First Amendment law on rights to anonymous political speech. As the McConnell-led letter notes, we all know that disclosure of donors to advocacy groups can be chilling, and this is why the Supreme Court has rigorously enforced the rules long recognized under the First Amendment protecting, in most cases, the right to support public advocacy anonymously. Due to the potential for harassment and reprisal toward donors, the Supreme Court has applied “exacting scrutiny” to disclosure requirements. The state interest in disclosure must be something more urgent than just doing what Democrats want.
Third, the proposed rules require disclosing whether “a party, its counsel, or any combination of parties, their counsel, or both has, during the 12 months before the brief was filed, contributed or pledged to contribute an amount equal to 25% or more of the total revenue of the amicus curiae for its prior fiscal year.” Judge Bybee has described this as a compromise with the AMICUS Act’s more stringent 3 percent threshold. But given the use of the terms “pledged” and “combination,” it is likely to prove more cumbersome than anticipated. To what end?
As the McConnell-led letter observes, none of this addresses real-world concerns rather than furthering a partisan campaign against the courts. And for what? If Whitehouse’s conspiracy theory is correct — and judges respond neither to the content of amicus briefs nor to the public reputation of groups submitting them, but instead to signals of what their donors want done — how is that fixed by giving those donors more prominent disclosure in the briefs? Sunshine matters in lobbying of elected officials, because lobbying happens in private, but judicial decision-making and the filing of amicus briefs already happen in the open.
Sometimes, the point isn’t sunlight, but sunburn.