Thursday, May 24, 2007

Supreme Court Rule Changes?

Last week (May 14) the Supreme Court released for comment proposed changes to its rules. One change of note is in the rules governing amicus curiae briefs. Tony Mauro, New Supreme Court Rule Would Force Advocacy Groups to Reveal Membership Rolls, Legal Times (, May 24, 2007.

Currently, an amicus must state in its brief whether counsel for a party drafted all or part of the brief. Under the the proposed rule (R. 37.6), the brief must state that and whether a party or a party's attorney is a member of the organization or made a monetary contribution to the preparation or submission of the brief.

On the one hand, this makes complete sense. Suppose I'm a litigant and wealthy. Would it be fair for me to be able to use my wealth to dummy up fake advocacy organizations (Citizens' Association in Favor of Whatever) to write amicus briefs on my behalf? What if I could co-opt existing organizations and get them to submit briefs to support my side simply by writing enough checks?

On the other hand, many advocacy groups have worked hard to keep private their membership lists. The Supreme Court upheld their right to do so in NAACP v. Alabama, 377 U.S. 288, Findlaw link (1964).

One group that often submits amicus briefs is the U.S. Chamber of Commerce which, according the article, places a high premium on the secrecy of its membership list and promises members that it will never reveal that they're members.

Another change for amici (R. 37.2(a)) would tighten up the time for them to file briefs, with no possibility of extensions.

A change affecting parties is in the way length of briefs (and other documents) is counted -- if it's adopted, the limits will be word counts not pages (R. 33.1(1)(g)).

The proposed changes are available here.

1 comment:

Spartacus O'Neal said...

Privacy of association for the attorney and privacy of membership lists are overlapping but different issues: the attorney is in the public view; members are not. And since wealthy people don't need to argue pro se, their use of false front advocacy groups is not impeded. But given the malicious nature of right-wing advocates, and their history of harassment, keeping authentic public interest membership lists private is a matter of public safety.