Tuesday’s post on amicus briefs noted, among other things, the steady decline in the number of these briefs filed with the Wisconsin Supreme Court over the past several years—in contrast to the growing number at the United States Supreme Court. A reader has kindly directed my attention to Justice Abrahamson’s concurrence in State v. Loomis, which gives voice to her frustration over the court’s handling of motions for permission to file amicus briefs.
One aspect of Justice Abrahamson’s complaint is an assertion that the court’s orders granting or denying such motions have been opaque and inconsistent. These “orders generally do not explain the court’s decision,” she observed. “[T]hey do not guide lawyers and other interested persons in filing amicus briefs in future cases; and they do not provide the benefit of reasoned decisions so that the court can be thoughtful and consistent in its approach to amicus briefs.”
Not only does Justice Abrahamson regard the court’s amicus-petition rulings as mysterious, she also objects that they are too often rejections. “A court can use all the help it can get” when facing complex issues beyond the ken of most justices, she argues—thus prompting her contention that “[t]he court should, in my opinion, take a more expansive view toward granting motions to file amicus briefs.”[1]
It is impossible to be certain from Justice Abrahamson’s comments if she believes that the court has rejected more amicus petitions in recent years, or if it has done so more inscrutably than in the past. However, for someone puzzling over the question raised in Tuesday’s post—why the decline in the number of amicus briefs—Justice Abrahamson’s complaint does suggest another line of inquiry. My hypothesis centered on the possibility that potential filers might be coming to see less value in amicus briefs. Justice Abrahamson’s comments prompt one to wonder if the decline might also reflect a change in the justices’ handling of amicus petitions.
Meanwhile, Bill Tyroler has offered another explanation for the dwindling host of amici: “SCOW’s docket in recent years has been comprised more than in past years with banal, fact-specific cases that excite less interest among potential amici, who are more inclined to provide input where the law will be transformed.” While posting this contribution on Facebook yesterday, Mr. Tyroler hastened to add that theories about the amicus decline are speculative. But, as a long-time appellate attorney in the Public Defender’s Milwaukee office and a pioneer of the Public Defender’s “On Point” blog, his views merit thoughtful consideration.
[1] Such quotations may be found not only in Justice Abrahamson’s concurrence but also in the attachments that she provides.
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