Our own Sean Bradley just posted this interesting piece at the CockleBur:

Adam Chandler over at SCOTUSblog recently posted this update of his earlier work on the influence of petition-stage amici. Chandler notes that in the last five years, the number of petition-stage amicus filings has increased 35%, and the total number of amicus filers has increased by almost 65%. “In short: more, more, more,” he writes.

The requirements for petition-stage filings vary from the merits-stage in some important ways (see Rule 37.2), and the petition-stage filer should be aware of the differences.

The first important distinction that practitioners must bear in mind is that all amici must provide the parties’ counsel of record at least ten days notice of the intention to file a petition-stage brief. This requirement is independent of consents, and also applies to governments (which do not need the parties’ consent to file). Amici—including governments—must aver in the first footnote of the brief, appearing on the first page after the Table of Authorities, that proper notice has been given. So, while a governmental filing would be exempt from all of the other Footnote 1 requirements, at the petition-stage even governments must have a Footnote 1 describing notice.

Petition-stage amicus briefs are due 30 days after the petition is docketed. This is the same date that the clerk enters as the response due date on the docket. Amici supporting the petitioner (or neither party) are stuck with the 30-day deadline, but the due date for amici supporting the respondent will follow the respondent’s due date if the respondent requests and receives an extension. If the respondent does not file a petition-stage brief, but the Court later requests a response, all amici may file up to the due date set for the response. The Court will not hear an amicus’ motion to extend their due date.

The word-count limit for petition-stage amici is 6,000 words, down from the 9,000 word limit for merits-stage briefs. The brief is bound in cream card stock, regardless of who is supported.

Finally, while Rule 37.5 asks that amici at both stages include a Summary of the Argument, we have found that the absence of that section will not cause petition-stage clerks to reject the brief. Merits-stage filers must include a Summary, or the brief will not be docketed.

If you are considering an amicus filing at any stage of the proceedings, give us a call to make sure your brief will meet the Court’s requirements and be filed on time.