Brian Goldman Discusses Rise in SCOTUS Amicus Briefs

Bloomberg BNA – The United States Law Week | May.18.2016

Brian Goldman, a senior associate in Orrick’s Supreme Court & Appellate Group and a former Supreme Court clerk, recently spoke with Bloomberg BNA – The United States Law Week regarding the increase in amicus briefs filed before the Supreme Court and the qualities that ensure a brief will be taken seriously by the justices.

Brian, who clerked with Justice Sonia Sotomayor, credited the rise in amicus briefs to the “combination of a Supreme Court Bar with more repeat players who understand how amicus briefs can be deployed helpfully, and the court's signals, via citations in opinions and references at oral argument, that it welcomes briefs that contribute something new to the discussion.”

According to Brian, the justices “spend the most time on briefs that add something new to the case,” as opposed to “‘me too’ briefs that just restate the parties’ arguments.” This includes “details about the real-world consequences of the court's decision, an explanation of how the court's decision might affect other related areas of law, proposals for alternative legal theories or compromise positions, and the like.” Brian cited Kirtsaeng v. John Wiley & Sons, which was argued while he was clerking with the Supreme Court, as a good example.

Brian noted that in Justice Stephen G. Breyer’s most recent book, the justice said “that the briefs ‘from associations of commercial and nonprofit entities with high economic stakes in the matter’ provided the court with the information about ‘the interaction of foreign and domestic markets,’ specifically ‘the way sales of items abroad would have an impact upon Americans' that the court needed ‘to resolve the case satisfactorily.’”

“That comes across in the court's opinion, which discusses the amicus briefs at length,” Brian concluded.