The Benefits Of Being Wrangled
What's the best way to help bend the arc of the moral universe a little further toward justice?
One of the most fun aspects of being a public interest lawyer is the opportunity to serve as an amicus curiae. You needn’t slog through the years of discovery, motion practice, trial, and appeal in order to present your case to a court of last resort; you can simply hop into an already-developed case, make your arguments, and maybe even win! What could be better?
Then there’s the even easier practice of joining a coalition amicus brief. You get an invitation from your colleagues at another, like-minded organization, hash out whether you’ll sign on with your colleague’s in-house, maybe take a pass at editing the brief, and voila! Instant amicus.
A recent study by William & Mary law professors Alli Orr Larsen and Neal Devins (pending publication in the Virginia Law Review) shows that elite Supreme Court practitioners know how much we public interest lawyers like signing on to amicus briefs, and — no surprise — use that fact to their clients’ advantage before the Supreme Court. The process works like this:
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Counsel for one of the parties contacts potential amici and sets up a meeting to coordinate their participation. This lawyer, deemed the “amicus wrangler” by Supreme Court superstar Kathleen Sullivan, is responsible for getting helpful organizations on board and, ideally, recruiting other superstar lawyers to draft briefs for some amici. The article says that Supreme Court clerks often pay closer attention to briefs authored by these known entities, and it notes that at oral argument the justices have been known to refer to amicus briefs by their authors — “the Carter Phillips brief” and “the Walter Dellinger brief,” for example.
The amicus wrangler need not be a big firm lawyer, though. The article highlights the work done by Mary Bonauto — perhaps the most successful public interest lawyer in the country — to coordinate amici in same-sex marriage cases.
After the amicus wrangler has done her job, the “amicus whisperer” takes over. (Yes, apparently public interest lawyers are, metaphorically speaking, horses that must be wrangled and whispered to. As long as our work influences the Court, I’ll take it.) The amicus whisperer makes sure that the substance of the recruited amicus briefs is complete and coherent — that everything that needs to be said is said, but not too repeatedly. This means herding some amici into coalitions (to avoid repetition) and reviewing their briefs for content (to ensure nothing is missed). The article notes that the role of amicus whisperer is perhaps best left to someone other than counsel for one of the parties — since Supreme Court rules require parties to disclose whether they have authored any amicus briefs, outside counsel can play a more active editorial role without worrying about running afoul of the rules.
Why do Supreme Court practitioners go to all this trouble? As it turns out, our amicus briefs make a difference!
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First, at the cert-petition stage, amicus briefs can serve as markers of a case’s importance that increase the likelihood of a petition’s being granted. Indeed, the article says (as I have before here on this very website) that amicus briefs can invoke one of the formal grounds for granting certiorari set forth in Supreme Court Rule 10 — that a case is “important.” In any event, the article cites some numbers to highlight the importance of cert-stage amici: in 2014 the Court granted 12.25% of paid certiorari petitions with amicus support, as opposed to just 2.02% of petitions without amicus support.
Second, at the merits stage, amicus briefs can actually affect how Supreme Court justices view a case. This effect can be observed at oral argument, where the justices often bat an amicus brief off the arguing lawyers like a game of legal pong, and in the Court’s opinions, which increasingly cite to amicus briefs for support.
There’s more to the article — interesting stuff about amici as lobbyists and whether the “amicus machine” is a good thing. If you’re generally interested in either public interest advocacy or the Supreme Court, I’d recommend the article as a good read (something that’s not often said about law review articles).
I have a bit more to add, though. The article focuses on the United States Supreme Court, but it’s worth remembering that more or less the same process can play out before state courts of last resort. And if you think, as our own David Lat (dating back to his days as alter ego “A3G”) has suggested, that state court judges are icky, take note: in a little over a decade, the Massachusetts Supreme Judicial Court’s opinion in Goodridge v. Department of Health more or less turned into the Supreme Court’s opinion in Obergefell v. Hodges. State court opinions can have national significance.
Finally, the study has a pretty direct takeaway for public interest lawyers: not only do counsel for parties to cases before the Supreme Court contact potential amici, but potential amici contact the parties’ counsel too. That means you probably have untapped opportunities to serve as an amicus and help bend the arc of the moral universe a little further toward justice. So what are you waiting for? Go do it!
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Sam Wright is a dyed-in-the-wool, bleeding-heart public interest lawyer who has spent his career exclusively in nonprofits and government. If you have ideas, questions, kudos, or complaints about his column or public interest law in general, send him an email at [email protected].
