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Academic highlight: The Supreme Court, the Rules Committees, and amicus practice

Scott Dodson is the Associate Dean for Research and the James Edgar Hervey Chair in Litigation at UC Hastings College of the Law.

The basic separation-of-powers model allocates lawmaking power to the legislative branch, enforcement power to the executive branch, and interpretive and adjudicative power to the judicial branch. But, of course, there are areas of the law in which these powers shift or overlap among the branches.

Court rulemaking is one of those areas. With few exceptions, Congress has the sole constitutional authority to make procedural law for the lower federal courts. In practice, though, things are more complicated. Because the judiciary’s expertise in court procedure exceeds the legislature’s, Congress has delegated its authority to make general rules of federal-court practice and procedure to the Supreme Court in a statute called the Rules Enabling Act. The REA prescribes some procedures for court rulemaking and delegates other rulemaking procedures to the Judicial Conference, which is a group of federal judges prescribed by statute.

Under the REA and the rules of the Judicial Conference, lower-court rulemaking goes through the following stages. The Rules Committees (the Standing Committee and the various Advisory Committees), whose memberships are composed primarily of judges and practitioners with firsthand working knowledge of the rules, meet often throughout the year, hold public hearings and take public comments on proposed amendments, commission studies of the rules through the Federal Judicial Center and the Administrative Office, and publish detailed minutes of their meetings. This rulemaking process is open and democratic, led by experts, with consultation from a wide spectrum of practitioners and interest groups.

Rulemaking recommendations proceed from the Rules Committees through the Judicial Conference, to the U.S. Supreme Court, which has the final approval authority under the REA (subject to a veto by Congress). However, by the time rule proposals get to the Supreme Court, there is little left for the justices to contribute. Compared to the Rules Committees, the Supreme Court is neither particularly expert nor particularly interested in lower-court rules. As a result, the Supreme Court has become a rubber stamp — sometimes expressly so — in the rulemaking process.

After the rules go into effect, however, the courts take over and the Rules Committees take a back seat. Federal cases presenting issues of rule interpretation frequently make their way to the Supreme Court for resolution, and the court is solely responsible for providing an authoritative interpretation of those rules.

The Supreme Court, however, is not the best interpreter of lower-court rules. The court may lack a full understanding of and appreciation for relevant information, such as rulemaker intent, the purpose of the rule, how the rule interrelates to other rules, the history of the rule and relevant amendment proposals, the “legislative facts” underlying the rule, and how the rule currently works in practice. Institutionally, the Supreme Court is guided by the parties’ arguments, principles of stare decisis, and the narrow dispute at stake rather than broader questions of the rule and its interrelatedness to other rules or statutes or interests.

The Supreme Court faces similar informational and institutional deficiencies when it interprets a statute or agency rule, but in those cases, the government agents involved in the statute or agency rule often offer assistance to the court via an amicus brief. The expertise and knowledge of the government can help the court to interpret the law correctly and avoid unintended consequences.

But court rules are different because the Rules Committees do not participate in any kind of amicus practice. The Supreme Court’s deficiencies thus remain in many rule-interpretation cases.

These deficiencies have led to some questionable opinions. In Bell Atlantic v. Twombly, for example, the court was asked to interpret the standards for pleading a civil case under Rule 8 of the Federal Rules of Civil Procedure. In doing so, the court didn’t really rely on the text of the rule. Nor did it rely on the history of the rule or the policies that animated its drafting. Instead, the court relied on its own vision of pleading policy as a screen to protect defendants from high-cost, low-merit lawsuits. In the process, the court grafted new language onto Rule 8, overruled a prior case that had been taught to generations of lawyers, reinvigorated an antiquated distinction between legal conclusions and factual allegations, and marginalized key tools for protecting defendants in other rules.

The court did all of this without any input from the Rules Committees, which could have provided the court with a wide range of relevant information. The committees could have informed the court about research tending to show that defendants don’t need pleading-stage protection in the vast majority of cases, the efficacy of existing tools for protecting defendants in outlier cases, the historical difficulties of parsing the distinction between legal conclusions and factual allegations that led to the promulgation of Rule 8, and the burdens that heightened pleading standards impose on plaintiffs with meritorious cases.

Cases like Twombly raise this question: Should the committees charged with the front-line work of studying the rules and proposing rules and rule amendments have an opportunity to voice their views when those rules are up for interpretation by the Supreme Court?

In a recent article in the Virginia Law Review titled “Should the Rules Committees Have an Amicus Role?,” I argue that the answer is yes.

One might ask why the solicitor general can’t fill this role. When the United States is not a party, the solicitor general does occasionally file amicus briefs on behalf of the United States in cases involving rule interpretation. However, the solicitor general often has the same deficiencies as the court in these cases. Worse, the solicitor general primarily seeks to advance the interests of the federal government as a litigant, especially for pro-prosecution interpretation of federal criminal rules (because the Department of Justice is often a prosecutor) and pro-defendant interpretation of federal civil rules (because executive-branch officials are often sued in civil cases). And, as an executive-branch officer who serves at the pleasure of the president, the solicitor general often represents the political interests of the executive branch, or, even more narrowly, the president. These political and branch-specific interests can collide with the judiciary’s interest in fair and workable court rules.

Indeed, the solicitor general filed an amicus brief in Twombly supporting the defendants. The brief struck a strongly partisan chord on rule interpretation that the Supreme Court largely adopted, with little resort to the text or history of Rule 8. Notably absent from the brief was any mention of the kinds of useful, true-friend-of-the-court information the Rules Committees could have provided: knowledge of other protections against excessive discovery costs, empirical evidence of the costs of meritless suits or the incidence of discovery abuse, or any understanding of how other rules might operate in tandem with Rule 8.

Of course, if the United States is a party (which it is in most criminal cases and many civil cases), the solicitor general’s office won’t file an amicus brief but instead will file an adversarial merits brief with the primary goal of winning the case, as it did in Ashcroft v. Iqbal, in which the office used its achievement in Twombly to secure a dismissal for the defendants it represented in Iqbal.

In my paper, I argue that amicus participation by the Rules Committees could support better – or at least more transparent — decisionmaking by the Supreme Court.

What might this look like? Two primary possibilities are what I call the weak “consultancy” role and the strong “independent amicus” role.

The weak “consultancy” role would require the solicitor general’s office to consult with the Rules Committees in any amicus brief it files on an issue of rule interpretation or application. After all, the solicitor general usually consults with agencies in agency-rule cases. Currently, however, the norm is that consultation is neither sought by the solicitor general nor provided by the Rules Committees.

That norm should be changed. Consultation would allow the Rules Committees’ knowledge and interests to be voiced by perhaps the most effective and frequent Supreme Court advocate, one who is highly credentialed and respected, is a Supreme Court specialist, has few financial constraints, and boasts an unparalleled win rate. No law would need to be changed to authorize this weak form of Rules Committee participation. The solicitor general and the Rules Committees would only need to normalize the practice of consultation and craft internal rules for its implementation.

This weak consultancy role would be insufficient, of course, when the solicitor general refused to represent the views of the Rules Committees. This might occur if the solicitor general were already representing a member of the executive branch as a party, if the solicitor general refused to file an amicus brief in a private-party case, or if the solicitor general advanced priorities in an amicus brief that did not represent those of the judicial branch.

Those situations might justify giving Rules Committees independent authority to file an amicus brief. Congress would have to authorize this power through statutory amendment, but in similar circumstances Congress has given independent amicus authority to other federal entities, including the Federal Elections Commission, the Senate’s Office of Legal Counsel, and special prosecutors appointed under the Ethics in Government Act of 1978.

The logistics of an effective amicus role — whether weak or strong — are, admittedly, difficult. The Rules Committees are not designed for adjudicative advocacy, either in resource support or focus. To address some of these concerns, I propose to use the Administrative Office of the United States Courts, which has an Office of the General Counsel that already provides legal counsel and services to the Judicial Conference and helps support the rulemaking process by assigning career staff attorneys to assist the Rules Committees. Adding an amicus role would impose some increased burden on that office, but its involvement is likely to be limited to specific contexts, consist of presenting information already in the hands of the Rules Committees and the Administrative Office, and be achieved through consultation or briefs without oral argument.

Of course, the Rules Committees themselves might resist an amicus role, perhaps to avoid the appearance of partisan advocacy. But the amicus role I envision would be as a true friend of the court, offering neutral expertise on “legislative facts” like discovery expense or judicial-management issues and how the rules work in the lower courts; information about possible changes to rules currently at issue in a case; the historical context of the origins of a rule and whether the bases, policies and justifications for the rule continue in force today; and broader perspectives about the rules that the parties, with their more narrow focus, might otherwise ignore. Conveying this information in an amicus brief surely is no more political or partisan than rulemaking itself. Participation as a true friend of the court would fulfill the prescribed role of the Rules Committees: to study the rules and to provide information and recommendations to the Supreme Court.

Recommended Citation: Scott Dodson, Academic highlight: The Supreme Court, the Rules Committees, and amicus practice, SCOTUSblog (May. 16, 2018, 10:09 AM),