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08/24/2018

SCOTUSblog on Originalist Amicus Briefs
Michael Ramsey

At SCOTUSblog, William Seidleck & JP Schnapper-Casteras: Top 10 ways to “friend” SCOTUS.  From the introduction:

Filings by “friends of the court,” known as “amicus briefs,” are more important and sophisticated than ever. They come in many forms and lengths — but contemporary practice suggests that there are 10 (or so) common themes and clear strategies that can have a real impact.

...

The surge of amicus briefs also presents a conundrum: As the number of briefs increases in a particular case, the ability to “stand out” — and get closely read and utilized by the clerks or justices — can decrease.

...

In a nutshell, here are the top 10 types of amicus briefs that can help “friend” the Supreme Court...

And their number one is:

1. Historical: a brief focused on American history, legislative history or originalism. Examples: a brief by originalist scholars in National Labor Relations Board v. Noel Canning [Noel Canning Originalist Scholars] and a brief detailing how the founding generation would have understood the Fourth Amendment in Carpenter v. United States [Originalist Brief].

Agreed.  Litigants are getting more sophisticated about making originalist arguments, but I think there is substantial room for originalist amicus briefs for (at least) two reasons:  (1) The parties' attorneys have to cover the whole range of constitutional "modalities" in their briefs; even when they have a strong originalist argument, there is only so much space they can devote to it, so the parties' originalism may necessarily be somewhat superficial. (2) Originalist amicus briefs by originalist scholars can bring expertise and familiarity with founding-era sources developed over a long period of time with deep scholarly attention; even the best appellate attorneys can't develop that level of expertise in the relatively short life of a Supreme Court case.  In the Noel Canning brief mentioned in the SCOTUSblog post, for example (on which I was counsel of record), we relied to a substantial extent on the expertise and past scholarship of Mike Rappaport, who had been studying the recess appointments issue for many years.