Earlier this fall, the Sixth Circuit Appellate Blog analyzed the frequency of amicus filings before the Sixth Circuit, as well as the types of amici who have filed briefs in the Court. In short, this blog found that the filing of amicus briefs is relatively rare in proportion to the Court’s docket, that the amici who do appear before the Court are a fairly diverse group, and that government attorneys, writing in the capacity of amici, appear statistically to garner the most attention from the Court.
A recent article in the New York Times underscores the significant difference in amicus practice between the U.S. Supreme Court and the Sixth Circuit. The Times article found that, “[i]n major cases, the Supreme Court receives stacks of friend-of-the-court filings” and that, in the Supreme Court’s most recent term, it decided some 80 cases, for which it received 56 briefs from groups of law professors alone. Indeed, the article cites criticism made by Professor Richard H. Fallon, Jr. of the Harvard Law School regarding of the volume of amicus submissions by law professors to the High Court. According to the article, former Justice John Paul Stevens “‘normally … didn’t even read amicus briefs,’” having his law clerks cull out amicus filings that were of particular importance. And Justice Antonin Scalia was quoted as stating that, while his clerks read the amicus briefs filed with the Supreme Court, he did not personally read all of them. So while a significant number of amicus briefs may be filed with the High Court, it is unclear exactly how significant an impact they ultimately have.
Both in quantitative and qualitative terms, amicus practice clearly differs between the High Court and Sixth Circuit. Of course, amicus filings in the Sixth Circuit are much rarer. This finding hardly surprises, since the certiorari process greatly reduces not only the absolute number of cases heard by the High Court but also assures that virtually all of its cases address significant questions of law or are otherwise of great public interest. But beyond this basic difference in volume, in contrast with amicus practice before the Supreme Court, the number of filings in the Sixth Circuit by law professors is not particularly significant. To be sure, law professors have filed briefs in the highest profile cases before the Sixth Circuit — for instance, in the recent challenge to the national health care legislation passed in 2010 and also the challenge to Michigan’s Proposal 2, which addresses affirmative action. But these cases are the exception, not the rule, in the Sixth Circuit.
However, as this blog also noted in its previous posts, there is reason to believe that amicus filings are becoming more frequent before the Sixth Circuit. Time will tell whether the number of law-professor amicus briefs increases, as well.