Looking Ahead: R Street’s Stance on Amicus Briefs
Since our founding, R Street has focused on complex policy issues that many other organizations tend to neglect. We also collaborate broadly with a wide variety of groups from across the political spectrum. Over the past decade, our partners have included everyone from the American Civil Liberties Union (ACLU) and Demand Progress to the Heritage Foundation and Americans for Prosperity. This collaboration is part of our DNA as an organization and a key component of our quest for “real solutions.”
As we have grown, allies have increasingly asked us to join them in signing amicus briefs they have written or organized; over the years, we have also had in-house legal scholars write several of our own. Looking ahead to 2023 and beyond, we have decided to focus on the areas where we can do the most good, and this means looking carefully at our role in working on amicus briefs. I’m writing this to explain why.
We want to play a constructive role in advancing good public policy; therefore, we need to be careful stewards of our resources. As such, going forward, we will not originate any amicus briefs or, as a general rule, sign onto those that others write. (Our scholars, as individuals, can still review amicus briefs to help allies and sign onto them in a personal capacity.)
Make no mistake, we stand by our past amicus briefs, including the most recent brief in the Supreme Court Case Twitter v. Taamneh. The few briefs we wrote in-house were excellent work that influenced both precedent-setting opinions and the granting of important cert petitions. The briefs written by others, which we signed onto, took positions we stand by on topics of public importance.
All that said, R Street is not a legal shop. Many of our partner organizations, including the Institute for Justice, Alliance for Defending Freedom and ACLU are legal operations properly resourced and experienced to do this work: they litigate, draft amicus briefs for cases they are not litigating and join briefs from others. Some other organizations we have counted as partners, such as the Cato Institute and Center for Democracy and Technology don’t generally litigate but do devote significant resources to writing amicus briefs and employ staff who can focus on this alone. This is extremely important work.
This is also difficult work. Cato describes an optimal strategy for amicus briefs that I agree with:
We work with the counsel for the parties we support, as well as other amici, to discuss what arguments need to be covered. To maximize efficiency and avoid redundancy, often we’ll join in other organizations’ briefs rather than filing our own, or invite other groups to join ours. A properly coordinated array of amicus briefs will hit all sides of the argument, with little or no overlap, and provide information for the Court about the scope of the problem and the effects of possible rulings.
We still want to know about opportunities to collaborate on amicus briefs, as in very rare circumstances and with enough lead time, we will consider signing briefs on a case-by-case basis as they intersect with our deep policy expertise or interests as a business.
However, we believe that, on the whole, others are better equipped to lead this type of work. We continue to cheer for these groups while asserting that R Street can do the most good focusing our efforts elsewhere.
