Recently, the Sixth Circuit Appellate Blog briefly examined the number of briefs filed in the Sixth Circuit by amicus curiae in calendar year 2001 and in 2010-11. Our findings suggest that amicus practice before the Court is relatively rare, occurring in only approximately 30 to 40 cases per year. Today, we look into some of our qualitative findings, based upon this data. And, in some ways, these observations prove more interesting.
For starters, the Sixth Circuit appears to make the most substantive use of amicus briefs filed by the government. Of the three cases in 2001 where the Court made express use of amici arguments, all three of the briefs cited had been filed by the government, specifically, by the Department of Justice and the SEC. In 2010-11, the government — this time, the FCC — was again the filer of a brief substantively cited by the Court. But in two other 2010-11 cases involving specialized questions of law — elections law and internet fraud — the Court made use of private amici: the Ohio Republican Party and the Electronic Frontier Foundation, respectively. Taken together, the data suggests that, unless a specialized issue of law is at stake, private amici are less likely than the government to have an impact before the Sixth Circuit.
It is also worth noting that, in the vast majority of cases, only one or two amicus briefs are filed in any given appeal. Exceptions come where, as one might expect, significant issues of law of broad interest to the general public are at issue. Thus, in 2001, an affirmative action appeal destined for eventual review by the Supreme Court — Gratz v. Bollinger (6th Cir. Nos. 01-333, 01-1416, 01-1418, 01-1438, 01-1447, 01-1516) — drew 15 amicus briefs on behalf of 17 amici. In the 2010-11 period, another affirmative action case from Michigan — Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary v. Regents of the Univ. of Michigan (6th Cir. Nos. 08-1387, 08-1389, 08-1534, 09-1111) — also drew several amicus briefs … a possible harbinger of eventual Supreme Court review?
Far and away the most significant number of filings of amicus briefs in either year of comparison came in the appeal involving the federal healthcare legislation passed in 2010, Thomas More Law Center v. Obama (6th Cir. Nos. 10-2388): some 75 amici filed a total of 15 amicus briefs. Such amici were highly diverse in nature, including a wide variety of medical associations, advocacy groups and Members of Congress. Yet, the Sixth Circuit’s decision in that matter made little reference to those briefs. Thus, while the sheer number of amicus briefs may well signal the perceived or actual public importance of a case, it is by no means an indicator of how influential the amici themselves may prove.
The data also suggests that the pool of amici appearing before the Sixth Circuit is a large and diverse one. Combining the data for 2001 and 2010-11, a total of 253 amici were represented in briefs before the Sixth Circuit. Most of these amici appeared in only a single appeal, though several appeared multiple times before the Court. The most frequent amicus was the U.S. Department of Justice (5 briefs) followed by the ACLU (4 briefs), with AARP, the Anti-Defamation League, the EEOC and the U.S. Department of Labor each filing 3 briefs and with a dozen or so other amici filing two briefs during that combined period.
There is only so much weight that one can place on such statistical snapshots, of course. An amicus brief could prove very persuasive to one or more judges on the Court, yet never garner a citation in the text of a decision — and therefore make no showing statistically. Moreover, since the number of cases accepted annually for review by the U.S. Supreme Court remains low, the importance of the U.S. Court of Appeals for interpreting and deciding issues of law cannot be understated. For this reason, despite the fact that amicus practice in the Sixth Circuit has been relatively rare, amici will likely continue to have incentive to weigh in before the Court.
