The Supreme Court’s decision last week to appoint H. Bartow Farr and Robert Long to argue in the ACA cases follows in a long tradition of appointing amici to support positions that might not otherwise receive representation at the merits stage. But should positions themselves receive representation?
Earlier this year the Stanford Law Review published an interesting note by Brian P. Goldman titled “Should the Supreme Court Stop Inviting Amici Curiae to Defend Abandoned Lower Court Decisions?” In the article, Goldman argues the Supreme Court should limit the instances in which it appoints amici for a variety of compelling reasons, not least of which is that appointing amici can take control of litigation away from the parties to litigation.
The idea of appointing amici should ask us to consider the extent to which we believe in the adversarial system in the Supreme Court. Over the years, regular amici, as well as appointed amici, have taken an increasingly central role in shaping litigation. As a result, the Supreme Court could be reaching more education decisions–if you assume the increase in amici participation is introducing a wider breadth of ideas–but that may have taken some of the power away from the parties that have skin in the game. If a litigant wants to leave a favorable lower-court decision to die, should the Supreme Court really object by appointing someone to artificially support that position?
Attorneys in every court make fringe arguments at the request of their clients or because those fringe arguments are the best available. When the Supreme Court appoints amici, however, they pushing the fiction of credible arguments even further by artificially appointing someone to represent a position they literally have no reason to support. That position is not in the best interest of their client, as in the proud adversarial tradition, nor is it really benefiting any ‘client’ at all.
Traditionally, appointed amici have been a mix of both experienced appellate litigators and relatively green ones, but recent appointed amici have been much younger. Those amici are sometimes appointed in relatively unimportant cases and advocate for positions that have very little likelihood of success (although some occasionally win the day). In that tradition, both Chief Justice Roberts and Latham & Watkins partner Maureen Mahoney argued their first cases as appointed amici. The advocates arguing in the Healthcare cases are a bit of an exception to that recent trend then because, while both are former Supreme Court clerks, they are also experienced advocates with more than a dozen arguments each and experience in the Office of the Solicitor General. In fact, Robert Long served in the Office of the Solicitor General while Chief Justice Roberts was a Deputy Solicitor General and only a few years after Justice Alito served as an Assistant to the Solicitor General.
In many ways, appointed amici are truly friends of the court. They write briefs and argue free of charge, and they have no client except the Court. It would be hard to find amici better than the ones appointed in the Healthcare cases, but should they have been appointed at all?