Over the next week, we expect a flood of amicus briefs opposing and supporting OSHA’s Emergency Temporary Standard. There are already ten such briefs on the main docket, with many more listed amici yet to file, and many more preparing to appear. We expect that many amicus parties will want to weigh in on OSHA’s pending motion to dissolve the Fifth Circuit’s stay in advance of the December 7th scheduling deadline, especially given the possibility that the Sixth Circuit’s decision on that issue may presage its disposition of the merits.
This amicus attention is on par with a Supreme Court case, in which the amicus process is well-understood: the Justices generally do not read them, at least not initially, but rather leave that to their clerks, who sometimes use them with their initial drafts of opinions. Those writing amicus briefs understand that clerks are their primary audience. Despite this limitation, amicus briefs are very important to the Supreme Court: nearly all Supreme Court cases attract an amicus brief and, depending on the year, well over 50% of Supreme Court opinions will cite an amicus brief. Recognizing this power, parties file a lot of amicus briefs: on average, around 15 amicus briefs for every Supreme Court case.
This blog has often looked at amicus practice in Sixth Circuit, which is significantly different. Amicus briefs are far more rare —they are filed in less than 50 Sixth Circuit appeals each year out of the thousands decided by the court. Circuit-level amicus practice is often driven by just a handful of important cases (such as the present one) that attract multiple briefs. Circuit judges are also far more likely to read an amicus brief, rather than leaving them to their clerks. That said, amicus briefs are perhaps as important as in the Supreme Court: we’ve found they are cited by Sixth Circuit judges in between 20 to 40% of the cases that attract amicus filings. The circuit substantively relies on an amicus filing in about 10% of the cases that attract an amicus. Compared to the large cost of litigating a case from complaint to appeal, an amicus brief can be an efficient investment for parties concerned about the development of the law.
That said, this case is different because its consolidated docket already features thirty-three different petitions, and so the Sixth Circuit might be facing thirty-three briefs on stay and the merits. With so many petitioners and amicus parties, amici would be well-advised to adhere to Judge Posner’s advice and focus on original, novel facts and perspective, rather than duplicate the statutory and constitutional arguments that will be fully briefed (many, many times over) by the parties.