The Sixth Circuit received submissions from Amicus on OSHA ETS
Over the next week or so, we expect a flood of amicus briefs opposing and supporting the OSHA Temporary Emergency Standard. There are ten such briefs already on the main record, with many more listed Amici to file, and many more preparing to appear. We expect that many friendly parties will want to weigh in on OSHA’s pending petition to dissolve the Fifth Circuit suspension before the December 7 programming deadline, especially given the possibility that the OSHA’s decision. Sixth Circuit on this issue foreshadows its decision on the merits.
This amicus attention is akin to a Supreme Court case, in which the amicus process is well understood: judges usually don’t read them, at least not initially, but rather. leave that to their clerks, who sometimes use them with their first drafts of reviews. Those who write amicus briefs understand that clerks are their main audience. Despite this limitation, amicus briefs are very important to the Supreme Court: almost all Supreme Court cases are the subject of an amicus brief and, depending on the year, well over 50% of Supreme Court opinions cite an amicus brief. Recognizing this power, parties file many amicus briefs: on average, around 15 amicus briefs for each Supreme Court case.
This blog has often look at to the practice of amicus in the sixth circuit, which is very different. Amicus briefs are much rarer – they are filed in less than 50 Sixth Circuit appeals each year out of the thousands decided by the court. The practice of circuit level amicus is often motivated by a handful of important cases (like this one) which attract many submissions. Circuit judges are also much more likely to read an amicus brief, rather than leaving it to their court clerks. That said, amicus briefs may be as important as they were at the Supreme Court: we found that they are cited by Sixth Circuit judges in 20-40% of cases that attract amicus filings. The circuit is essentially based on the filing of a friend in about 10% of the cases that attract a friend. Compared to the high cost of litigating a case, from complaint to appeal, an amicus brief can be an effective investment for parties affected by the development of the law.
That said, this case is different because its consolidated file already contains thirty-three different petitions, and the Sixth Circuit could therefore be confronted. thirty-three memoirs on the living room and the background. With so many petitioners and friendly parties, the amici would be well advised to join Judge Posner’s advice and focus on original and new facts and perspective, rather than duplicating the statutory and constitutional arguments which will be fully explained (several times) by the parties.
© Copyright 2021 Squire Patton Boggs (US) LLPRevue nationale de droit, volume XI, number 336