Without a Little Help From Your Friends: The Supreme Court’s Rejection of the American Jewish Congress Amicus Brief in NAACP v. Alabama ex rel. Patterson (1958)

• In Event: Legal Doctrines and Their Political Effects

Abstract

It was a requirement that stood for eighty-five years. Beginning in 1937, the formal Rules of the Supreme Court stated that an amicus curiae brief could only be filed with the consent of the parties to a case (or, effective 1949, with the consent of the parties or a majority of the justices). That all changed on January 1, 2023, when Scott S. Harris, Clerk of the Court, issued a memorandum indicating that the consent requirement was no more. The legal community did not view the change as surprising, but rather as reflective of the fact that nowadays “virtually all amicus briefs are, as a practical matter, docketed,” regardless of whether consent is obtained.
Over the course of its history even when consent to file an amicus brief was withheld by one or both of the parties, the Court rarely denied a subsequent motion for leave to file the brief without the parties’ consent. This paper engages in a case study of one of those rare denials – the denial of the motion filed by the American Jewish Congress (AJC) which sought to file an amicus brief in the First Amendment associational freedom case NAACP v. Alabama ex rel. Patterson (1958). The paper analyzes the substance of the brief, the Court’s Rules that were in existence at the time, and the justices’ reaction to the AJC motion.

Author

• Helen J Knowles-Gardner, Institute for Free Speech