How to File an Amicus Brief in the U.S. Supreme Court

Attorney Answer

You do not need anyone's permission. Since January 1, 2023 the Supreme Court's rules no longer require an amicus to obtain the parties' consent or leave of the Court. What you do need is to file within the deadline set by the case's briefing schedule, in the Court's required format, with the disclosures the rule demands — and the format is where nearly all the cost sits.

Sup. Ct. R. 37 governs amicus curiae briefs. Its premise is that a brief bringing to the Court's attention relevant matter not already brought to its attention by the parties may be of considerable help — and, by implication, that a brief merely repeating the parties' arguments is not. As amended effective January 1, 2023, the consent-or-leave requirement was removed at both stages: Sup. Ct. R. 37.2 at the petition stage and Sup. Ct. R. 37.3 at the merits stage now set filing deadlines tied to the briefing schedule rather than requiring you to chase party consent or file a motion. Any guidance you find telling you to write to counsel for the parties for consent is describing the old rule.

Sup. Ct. R. 37.6 requires disclosure in the brief itself: whether counsel for a party authored the brief in whole or in part, and the identity of every person or entity, other than the amicus and its counsel, who made a monetary contribution intended to fund the brief's preparation or submission. Take that seriously — it is not boilerplate, and it is one of the few things in Rule 37 that carries an affirmative obligation of candor.

On qualifications: Rule 37 imposes no test for who may be an amicus. There is no membership, credential, or institutional requirement for the amicus itself — the question is whether you have something useful to say that the parties have not said. Whether you may sign and file the brief yourself or need a counsel of record admitted to the Bar of the Supreme Court is a separate question about filings generally, and you should confirm it with the Clerk's Office before you spend money on printing.

On cost: the Court charges no filing fee for an amicus brief. The expense is production and service. Briefs on the merits must be produced in the Court's booklet format, which in practice means using a specialist printer, and the price scales with page count and the number of copies. Service on all parties adds to it. Get a quote from a Supreme Court printer before you commit; a specialist can also tell you what the current format and copy requirements are.

One thing to check before any of this. Look at the docket page for the case and identify what stage it is in. The deadline and the applicable subsection differ depending on whether the case is at the petition stage or the merits stage, and if the petition has already been denied, or merits briefing has closed, or the case has been decided, there is no amicus brief left to file.

What you can do

1. Open the docket for the case and read the entries in order. Identify whether a petition is pending, whether certiorari has been granted, and what dates have already passed. 2. Call the Clerk's Office of the Supreme Court. They answer procedural questions from the public, and they will tell you the current filing requirements, the number of copies, and whether counsel of record must be a member of the Court's Bar. 3. Pull the current Rules of the Supreme Court from the Court's own website and read Rule 37 in full before drafting. Do not rely on secondary summaries, including this one, for the exact deadline language. 4. Identify what you can tell the Court that the parties will not. Under Sup. Ct. R. 37 that is the entire justification for the brief — specialized experience, data, industry or scientific context, or a consequence the parties have no reason to raise. 5. Get a printing quote in booklet format early, based on a realistic page count. This is the real budget line. 6. Prepare the Sup. Ct. R. 37.6 disclosure accurately: who wrote it, and who paid for it. 7. If you can, retain or partner with counsel experienced in the Court. Rule 37 having dropped the consent requirement lowered the procedural barrier, not the drafting standard — a brief that merely repeats a party's position does not help the amicus or the Court.

⏱ Time limits apply. Sup. Ct. R. 37.2 and Sup. Ct. R. 37.3 set amicus filing deadlines keyed to the briefing schedule in the particular case, so your deadline depends on that case's posture and on dates already set on its docket. Read the docket and confirm the date with the Clerk's Office before you begin drafting — an amicus brief filed after the deadline is not accepted, and the printing lead time has to fit inside whatever time remains.