With friends like these

From Reuters:

With friends like these

3/17/2012COMMENTS (0)

March 17 (Reuters) - So many friends. So little love.

Such is the state of the amicus, or "friend of the court," briefs that have piled up in the upcoming U.S. Supreme Court health care case.

In all, some 136 amicus briefs have been filed with the high court in the Patient Protection and Affordable Care Act litigation. That's a two-foot high stack (a Reuters estimate); two cartsful, according to Solicitor General Donald Verrilli in a recent speech at Georgetown Law; and a third more amicus briefs than were submitted in the previous Supreme Court amicus record-holder -- a pair of affirmative action lawsuits against the University of Michigan, decided in 2003.

Appellate lawyers who specialize in drafting such arguments estimate that the average brief can cost between $25,000 to $50,000. That puts the size of the amicus industry for this case alone in the $3.4 million to $7.8 million range.

The amicus briefs have arrived from every corner of the legal firmament. There's a 26-page entry from the Montana Shooting Sports Association, which argues the federal government should butt out of state affairs. There's also a 36-pager from Gibson Dunn litigator Ted Olson, submitted on behalf of five former attorneys general. Washington and Lee University's Black Lung Clinic has filed a brief, as has former Solicitor General Walter Dellinger and two 100-strong coalitions of noted economists (including a few Nobel-prize winners) who argue opposite sides of the issue.

"You get to be part of history," says Todd Peppers, professor at Washington and Lee University School of Law and expert on Supreme Court law clerks.

The one thing the amici authors don't mention is how unlikely it is their labors will have an impact. In the Supreme Court's last term, only eight percent of the total 628 briefs filed by non-government amici were cited by the justices, according to a report by R. Reeves Anderson and Anthony Franze of the law firm Arnold & Porter. Of those that got a nod, nearly half were written by prominent appellate lawyers from Washington, D.C.-based firms with Supreme Court practices.

Not even the justices necessarily pay much attention to them. Antonin Scalia, in October told students at Chicago-Kent College of Law that he doesn't read amicus briefs. He instead passes them on to his clerks. Last year, former Justice John Paul Stevens complained of amici fatigue to an audience at Northwestern University Law School, saying "we could get along with fewer amicus briefs."

Quentin Rhoades, the lawyer for the Montana Shooting Sports Association who filed the group's amicus brief, has no illusions about the impact his amicus argument will have. "I'm deadly certain it will not get attention," said Rhoades.

The court may be nearing a tipping point when it comes to accepting amici. In the 1950s, controversial cases dealing with alleged Communist Party affiliation drew so many propaganda-filled filings that the court clamped down on them. For the historic Brown v. Board of Education in 1954, only six amici were filed. But in the 1960s, at the prodding of justices Felix Frankfurter and Hugo Black, the court reversed that policy. In the court's last term, there were an average of nine amicus briefs per case, according to Anderson and Franze, though high profile cases often attract double-digit filings.

That so many big minds would devote so much brain and person power to trying to influence the court goes with the territory. Outside parties almost always file amicus briefs in Supreme Court cases, and especially in high profile ones. Yet even for the elite cadre of lawyers who pen Supreme Court amicus briefs on a regular basis, getting in a healthcare amicus confers some bragging rights.

"A lot of lawyers want to say they participated in this case," said Dan Bromberg, an appellate lawyer at Quinn Emanuel who has not filed an amicus brief in the healthcare case, but who has filed such briefs on behalf of Google, the U.S. Chamber of Commerce and a coalition of 26 state attorneys general.

Still, the bar for submitting briefs is surprisingly low. Any interested party with the $1,500 to $2,000 fee it costs to submit the brief in the proper bound format, can send one in. The number of companies offering to print and file such briefs has doubled over the last few years, according to Mary Anne Shepard, a correction specialist with Cockle Law Brief Printing in Omaha, Nebraska. The firm, which has been producing Supreme Court briefs for 85 years, also produces a PDF copy so that the client can email it to meritsbriefs@supremecourt.gov, where a clerk will officially add it to the case file.

Among the flood of briefs, only a few manage to generate some buzz. This time around, it is the dueling briefs filed by opposing sets of economists. One, commissioned by the conservative American Action Forum policy institute, claims there's no evidence that people who choose to forego insurance are a financial drain on the healthcare system. That brief was drafted and filed by Dechert lawyers, including Steven Engel. The other, organized by Harvard economist David Cutler and filed by pro bono lawyers at Arnold & Porter, attacks the first's assertions. The fact that the American Action brief was cited by the 11th Circuit Court of Appeals in striking down healthcare reform, has added to its allure.

"Those are the ones people are reading and talking about," said lawyer Terence Pell of the Center for Individual Rights, who organized the Ted Olson brief filed for the former attorneys general.

The debate over amicus briefs spilled into academia last year when Richard Fallon, a Harvard Law School professor, criticized academics for signing onto amicus briefs without fully understanding their contents. He expressed concern that the pressure to endorse political documents was cheapening the scholarly enterprise.

"It got more reaction than anything else I'd ever written," Fallon said.

So, has it gotten to the point there are just too many amici? Not in the opinion of the young Supreme Court clerks who end up reading them.

"The clerks are hardworking, eager young lawyers who've come to the court for a great opportunity," said lawyer Steven Engel, who clerked for Justice Anthony Kennedy in 2001 and filed the amicus brief for the conservative economists. "They're reading all the paper that comes in."

(Reporting by Terry Baynes; Additional reporting by James Vicini.)

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