Headline-grabbing cases almost always draw amicus curiae briefs, as we covered here, but even cases with less at stake will inevitably reveal a number of interested parties seeking to influence the Sixth Circuit as it hands down decisions. But how much influence do amici really have in the Circuit? As a review of recent cases reveals, not much.
A search of Sixth Circuit cases mentioning “amicus” or “amici” in the past several years turned up only ten reported decisions. At the outset, several quick points are worth noting: formal organizations and citizens’ groups, such as unions, professional associations, and community organizing groups, were referenced the most by the court—either negatively or positively. The United States government followed with only several mentions as an amicus, and received mixed receptions. In one case, the court denied the Secretary of Labor any deference under either Chevron or Skidmore, and even criticized him for being “particularly aggressive in ‘attempt[ing] to mold statutory interpretation and establish policy by filing ‘friend of the court’ briefs in private litigation.” Amusingly, one case turned up did not involve an “amicus brief” at all, but rather a pro se criminal defendant’s mischaracterization of a suppressed piece of evidence as an amicus brief, yet the Sixth Circuit still politely addressed it. Finally, several amici were merely those denied the opportunity to intervene in the district court’s proceedings but allowed to file as amici.
Although amici curiae are literally “friends of the court,” they actually tend to be cited negatively more often than positively. In the cases used for this brief, non-scientific study, amici were cited negatively at least four times, either for being unhelpful, for making legally incorrect arguments, or for raising arguments without bearing on the case at hand. Several amici earned positive marks from the court for being “helpful” (e.g., the National School Board Association), one brief was received with mixed feelings, and two were relegated to passing mention in a footnote. Finally, it is worth noting that three of the cases were appeals involving the interpretation of ERISA, but in no case did the court rely on the amici: the first involved the criticized Secretary of Labor brief mentioned above, and the others involved amici attempting to raise issues on appeal not raised by the parties. (Which the court rejected each time tersely and deftly.)
These cases illustrate the importance of being thoughtful in terms of whether to file an amicus brief and its content. While a well-reasoned brief that provides broader context can and often is helpful to the court, ones that simply parrot the arguments of a party or shed no particular insight can prove counterproductive.