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The U.S. Supreme Court did something Jan. 5 that it’s never done before, at least in modern times: It granted a law professor’s request to argue as an amicus curiae.
The Supreme Court regularly allows third parties to file “friend of the court” briefs to highlight aspects of a case neglected by the parties.
The high court, though, is more protective of oral argument time. The court—with one big exception—usually turns away third parties seeking to participate in oral argument.
The vast majority of amici don’t even bother asking to participate in oral argument, Brian P. Goldman, of Orrick, Herrington & Sutcliffe LLP, San Francisco, who wrote an article on arguing amici, told Bloomberg Law.
Such a request is the Supreme Court equivalent of a cold call, Ryan Rodenberg, of Florida State University, Tallahassee, Fla., told Bloomberg Law. Unsurprisingly, Rodenberg’s recent request to argue in a high-profile sports betting case out of New Jersey didn’t pan out.
But University of Virginia School of Law professor Aditya Bamzai‘s long shot did pay off. As a result, on Jan. 16—just 11 days after his request was granted—Bamzai will have 10 minutes to convince the justices that his view of the case is the right one.
That marks the first time since at least the 1940s that the court has ever granted a law professor’s request to argue in a case, research by Bloomberg Law suggests. The case, Dalmazzi v. United States, examines the extent to which military officers can serve in civilian government positions.
Bamzai declined to comment for this story.
The fact that the Supreme Court rarely allows an amicus—at least one from outside the government—to argue makes a lot of sense, Aaron L. Nielson, of the J. Reuben Clark Law School, Brigham Young University, Provo, Utah, told Bloomberg Law.
Often “amicus briefs raise merits issues that are pretty similar to those in the parties’ briefs,” Nielson said.
Even if not already in the parties’ briefs, one of the parties is likely to agree with the amicus such that the court can explore it during oral argument without the assistance of a third party, he said.
Still, from time to time, amici will request time to participate in the oral argument, Stephen Sachs, of Duke Law, Durham, N.C., told Bloomberg Law. Those requests are very rarely granted, he said.
There is one major exception, however: requests from the U.S. Solicitor General, the top lawyer representing the federal government in the Supreme Court.
The SG’s grant rate for such requests is “sky high,” Rodenberg said.
Of the hundreds of requests that the Supreme Court has received from amici to argue since the 1940s, the majority have come from the SG’s office, research by Bloomberg Law showed.
Only a handful of those have been denied. Bloomberg Law research revealed only 11 times that the SG was turned away, most recently in 2005 in Del Rosario Ortega v. Star-Kist Foods, Inc.
The U.S. government often has a legitimate interest in these cases. The SG’s office is also reliably effective at oral argument, and therefore helpful to the court’s deliberations, Sachs said.
Although no one reaches the grant rate that the SG’s office does, other governmental actors occasionally have success in getting into oral arguments as amicus.
Texas and California—or their attorneys general—were the most successful argument seekers, research from Bloomberg Law showed.
Individual lawmakers have also had some success, Rodenberg said. Senate Majority Leader Mitch McConnell has been granted permission to argue as amicus in several cases, including the blockbuster campaign finance case Citizens United v. FEC, Rodenberg noted.
But other groups, even prominent ones, are typically turned away by the justices. The American Bar Association, the American Civil Liberties Union, and the Chamber of Commerce have all been denied permission to argue as an amicus.
Law professors requesting time to argue as an amicus have never had their motions granted.
About once a term the court will invite an attorney to argue a particular point to the court. Those invitations have included law professors. Harvard Law School’s Vicki Jackson was invited to argue in United States v. Windsorregarding the government’s definition of “marriage” as between only a man and a woman.
But no professor had been granted permission to argue after seeking to do so on their own behalf, Rodenberg said after researching the issue for his own request. The closest anyone came was Sachs, the Duke professor, Rodenberg said.
In 2013, the Supreme Court denied Sachs’s motion to participate in oral argument in Atlantic Marine Construction Co. v. U.S. Dist. Court for the W. Dist. of Texas, Goldman said. In the order, however, the court noted that, “The parties, however, should be prepared to address at oral argument the arguments raised in the brief of Professor Stephen E. Sachs as amicus curiae in support of neither party.”
“Professor Sachs was then mentioned by name 17 times at argument,” Goldman added.
“Perhaps this time, the Court thought it better to invite the professor to be part of the in-person conversation at oral argument,” he said.
Indeed, the court’s agreement to let Bamzai argue in Dalmazzi v. United States makes a whole lot of sense, Nielson said.
“First, his argument is not a merits argument but instead is a jurisdictional one,” Nielson said. The court is legally bound to consider its own jurisdiction, even if the parties don’t bring it up themselves, William Baude, of the University of Chicago Law School, told Bloomberg Law.
“Second, the parties both disagreed with Bamzai, so the Court would not have gotten a full discussion of the problem without” his participation, Baude said. The justices “must have thought the problem sufficiently serious” that they needed to have that discussion at oral argument.
Whatever the reason, the Supreme Court’s decision to allow Bamzai to participate in oral argument means he has just a week and a half to prepare for his first oral argument at the U.S. Supreme Court.
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Bamzai's motion is available at http://src.bna.com/vwY.
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