The role of briefs in Supreme Court cases

Written by William C. Duncan

March 16, 2022

As described in a previous post, the U.S. Supreme Court is very selective about the cases it agrees to review. This means that the cases the court does accept are likely to have great significance and be of great interest to more than just the parties involved in the case.

Once the court accepts the case, the parties must submit their legal arguments. The submissions are made in written briefs. The initial briefs have a 50-page limit, but the party that asked for review of the lower court decision can file a response to the briefs of the other party.

These briefs provide the parties an opportunity to convince the court to rule in their favor. In 2019, the National Association of Attorneys General selected some briefs as the best of the year. One of these, filed by the Missouri Attorney General’s office in a capital punishment case, is a good illustration of the way briefs are usually organized.

The brief begins with the “Questions Presented” by the case. This portion lists the questions it would like the court to answer. The questions can be written to try to nudge the court in a certain direction. Thus, the reference in the first question to the district court’s “considerable discretion” which suggests that the Supreme Court should defer to the trial judge’s conclusion in favor of the state.

The brief’s introduction gives the attorneys an opportunity to give a pithy framing of the case. Here, the introduction focuses on the “vicious” underlying crime, the last-minute filing of the case, the characterization of the prisoner’s claim as “implausible,” etc.

The “Statement of the Case” is the attorneys’ opportunity to present the facts, again in the light most favorable to their position. Good attorneys don’t overstate their case, but they do highlight the facts that are most likely to convince the court to accept their position.

The main part of the brief, the Argument, is carefully organized and heavily sourced with references to previous court decisions and scientific studies (particularly important since this case includes a medical dispute). The conclusion is typically very brief. In this case, a one-sentence request for the court to uphold the lower court decisions.

Given the importance of the cases the Supreme Court decides, there are often others, sometimes many others, who want to weigh in on a case. The United States is allowed to weigh in on any case and does not need special permission of the Supreme Court to do so. The government’s brief is filed by the solicitor general, who is the lawyer appointed by the president to represent the United States at the Supreme Court. During the 2021 term (beginning in October 2021), the solicitor general has filed about 80 briefs in the court.

Other individuals and groups have an interest in these cases as well. They can file amicus curiae briefs with the court. This Latin term for “friend of the court” suggests that these briefs from interested parties are intended to bring helpful information to the court’s attention that might not otherwise be highlighted in the briefs of the litigants.

Theoretically, subject matter experts could share information with the court about their expertise. In practice, this does happen, but amicus briefs can also be outward-facing – i.e., meant to signal the organization’s interest in the subject matter to a constituency of supporters or donors. Although a 50-page legal document will not seem to most people to be short, attorneys can almost always think of more arguments to bring to the court’s attention.

A recent analysis by two appellate attorneys in the National Law Journal of amicus briefs in the last decade shows how common they have become:

Over ten terms, amici cumulatively filed more than 8,000 briefs, participated in 96 percent of all argued cases, and were cited by the justices in more than half of their rulings. Once a rarity even in blockbuster cases, amicus participation repeatedly shattered records both for the overall number of briefs and the number of amici appearing in a single case.

The analysis includes a description of the most impactful types of amicus briefs:

The justices frequently cited briefs from the federal and state governments, briefs written by Supreme Court specialists, and “scholar briefs” from the academy. Most of all, the justices were drawn to briefs that did not just reiterate the parties’ arguments but instead provided real-world information that contextualized the difficult questions before the court.

Some high-profile cases involved more than 100 amicus briefs. In the Bostock v. Clayton County case, 94 amicus briefs were filed. As the National Law Journal analysis points out for perspective, “Roe v. Wade produced 23 amicus briefs and Brown v. Board saw just six.”

Given the critical role of the Supreme Court in shaping policy through its interpretive role, briefs from the parties to a case and from outside parties themselves take on significance in policy making. Understanding the role and purpose of these submissions is a valuable part of civic awareness.

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