Court drops consent requirement for filing of amicus briefs, makes other tweaks to rules


long table full of legal briefs with various colored covers, and masked person on left picks up one of the briefs

The Supreme Court on Monday announced changes to its rules, which govern litigation before the court and its operations. Although the changes were largely technical, the new rules, which go into effect on Jan. 1, 2023, do contain some significant substantive changes – most notably, the elimination of the consent requirement for amicus briefs.

Under the court’s existing practice, anyone who wants to file an amicus brief in a case before the court must obtain consent from the litigants on both sides of the dispute. If consent is not granted, the would-be amicus must seek the court’s permission to file. Unlike many other federal courts, the Supreme Court – with rare exceptions – normally grants such requests; perhaps as a result, litigants overwhelmingly provide consent.

The new version of the rule strikes the consent requirement altogether. Commentary by Scott Harris, the clerk of the Supreme Court, suggests that the requirement was eliminated because virtually all amicus briefs are, as a practical matter, docketed. Although the consent requirement “may have served a useful gatekeeping function in the past,” Harris explains, “it no longer does so, and compliance with the rule imposes unnecessary burdens upon litigants and the Court.”

The court also added new language governing the submission of amicus briefs related to emergency applications – the so-called “shadow docket,” which has expanded significantly in recent years. The court “discourage[s]” such briefs and sets what is apparently intended to be a high bar for their submission: They should only be filed, Rule 37.4 notes, if they “bring[] to the attention of the Court relevant matter not already presented by the parties that will be of considerable help to the Court.”

In Rule 34.7, the court added extensive new language that outlines the procedures for filing documents under seal. Harris explains that the new paragraph is “intended to reflect existing practice concerning the sealing of records.”

This article was originally published at Howe on the Court.

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