Sheldon Whitehouse
10/26/2021 | Press release | Distributed by Public on 10/26/2021 15:12
Yale Law Journal Publishes Whitehouse Essay on Flood of Briefs Influencing Supreme Court in Favor of Special Interests
10.26.21
Washington, DC - The Yale Law Journal has published an essay by Senator Sheldon Whitehouse (D-RI), Chair of the Senate Judiciary Courts Subcommittee, on anonymous special interests' use of amicus curiae - or "friend of the court" - briefs to lobby the courts for their preferred judicial outcomes. The article shows how the Supreme Court and other appellate courts' funding-disclosure rules for filers of amicus briefs undermine basic fairness, and discusses potential improvements to Court rules to restore faith in the courts.
"Amicus curiae briefs, an increasingly influential part of our legal system, have become the lobbying tool of choice for right-wing dark-money interests, who can coordinate systematized armadas of commonly funded briefs to push for their preferred political outcomes," Whitehouse writes. "The amicus machine usually goes undetected due to a disclosure regime that flatly fails to show the courts and parties (and the public) the sources of that coordinated common funding. This coterie of funders takes advantage of that secrecy to press its interests by bringing cases to Justices that they themselves helped get onto the Court. The Court's pattern of partisan decisions is hard to explain statistically. In conjunction with the broader dark-money project of capturing the courts, the outcomes are bad for democracy, tilting our system ever further towards the interests of a wealthy few."
The essay is titled, "A Flood of Judicial Lobbying: Amicus Influence and Funding Transparency." It joins a number of other articles Whitehouse has published for legal and policy journals in recent years, as well as numerous Supreme Court and appellate amicus briefs of his own.
Amicus curiae-or "friend of the court"-briefs are intended to allow outside parties to provide knowledge and expertise to help a court understand litigation before it. To guard against conflicts of interests and unfair practices, amicus filers are required to disclose the sources of their funding.
The federal courts, however, use a narrow reading of those rules that effectively allows all amicus funders to remain anonymous. The rules require that an amicus filer disclose whether "a party or a party's counsel contributed money that was intended to fund preparing or submitting the brief," and whether "a person . . . contributed money that was intended to fund preparing or submitting the brief and, if so, identifies each such person." In practice, the courts interpret that rule to mean that amici must disclose only funds used on the most basic outlays, such as the costs of formatting, printing, and delivering the specific brief in the specific case at issue. Even if a filer has accepted large donations to fund a legal practice focused on amicus advocacy, the sources of those donations can remain anonymous.
At the Supreme Court, the volume of amicus filers has exploded in recent years. Whitehouse notes that amici filed 781 briefs in the 2014 Term, a more than 800 percent increase from the 1950s and a 95 percent increase from 1995. In the Court's 2019 Term, amici filed 911 briefs, a rate of about sixteen per case; the recently concluded 2020 Term featured almost 940 amicus briefs filed at the merits stage. Some high-profile cases even draw amici numbering in the triple digits.
Whitehouse has led efforts in Congress to shine a light on amicus influence. With House Judiciary Courts Subcommittee Chairman Hank Johnson (D-GA), Whitehouse has called on the federal courts to impose stronger disclosure requirements for funders of amicus briefs. He and Johnson have also introduced legislation, the AMICUS Act, to adopt a stronger amicus disclosure regime.
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