Under the Federal Rules of Appellate Procedure (FRAP), any person or organization may file an amicus brief in a federal appellate case so long as they have the consent of all parties. Only if a party denies consent must a would-be amicus file a motion for leave. In that motion for leave, the potential amicus summarizes the brief it wishes to file and explains why it would be useful to the court. In practice, consent is usually given by all parties because such motions are routinely granted and merely cause more work for amici and judges.

But under a proposed amendment to the FRAP, this system would change dramatically. A proposed rule change would end the ability for all nongovernmental entities to file appellate amicus briefs by party consent. Instead, under these proposed amendments, nongovernmental amici would be required to move for leave to file every brief, regardless of consent. And such motions would have to explain why the amicus brief in question would not be “duplicative” of arguments made by the parties or other amici.

I have submitted a comment on these proposed amendments to the Committee on Rules of Practice and Procedure of the Administrative Office of the United States Courts. In my comment, I urge the Committee not to adopt the proposed amendments. My comment focuses on what this change would mean from the perspective of a frequent amicus filer.

As I note in my comment, the Supreme Court changed its rules in 2023 to allow any individual or group to file amicus briefs on the merits in any case without the need to obtain party consent. Thus, it is guaranteed that amicus briefs submitted to the Supreme Court will be accepted for filing. As a steward of Cato’s limited resources and our attorneys’ limited time, I would find it hard to justify gambling our time on producing an appellate amicus brief that might not even be accepted for filing when we could instead spend that time producing a Supreme Court brief that would be guaranteed to be accepted. Thus, the proposed rule change would not only reduce the number of appellate amicus briefs by causing some to be rejected for filing. It would also reduce the number of briefs by causing many to not even be written in the first place.

The proposed rule change would thus likely incentivize amicus filers to focus even more on the Supreme Court than they already do. And that is precisely the wrong direction for amicus filings to trend. If anything, the balance should be tilted toward encouraging the dedication of more amicus resources to the federal appellate courts and less to the Supreme Court. The federal appellate courts decide difficult and consequential cases every day, and they usually do so without the benefit of amicus help.

In my comment, I also explain that when an amicus is required to move for leave to file, its motion often mirrors very closely the summary of the argument in the amicus brief itself. In practice, it would be just as easy for a judge to read a brief’s summary of argument and decide whether to read further. That is what judges have done in the past, and they should be allowed to continue doing so without interposing an unnecessary motion stage.

Finally, I note that the limited time and resources of amicus filers is itself a reason why amicus briefs tend not to be overly duplicative. Major frequent filers on the same side of a case will check with each other to ensure that they are not repeating each other. That is the smart thing to do when they all have limited time and resources. The rational interests of amicus filers largely serve to address concerns of duplicative briefs. There is no need for a motion stage to try to enforce an unpredictable rule against being overly duplicative. The Committee should reject the proposed amendments.