High Court Breaks With Tradition With Recent Amicus Appointment

The justices tapped a non-former clerk to argue as an amicus in an upcoming case for the first time in over a decade, according to research by Bloomberg Law.

Amy Weil, of Atlanta, was invited by the U.S. Supreme Court May 25 to brief and argue a specific position in an attorneys’ fee dispute in a social security case that will likely be argued next term.

There have only been 51 other such appointments since the practice began in 1966, according Adam Feldman, who blogged about the practice in January.

Though the practice has “picked up” since then, there’s still usually only one or two appointments per term, according to Feldman’s post.

These rare appointments typically go to former high court clerks.

All of the last 25 amicus appointments, dating back to January 2008, had previously clerked for a Supreme Court justice. One—Jeffrey Bucholtz of King & Spalding LLP, Washington—didn’t clerk at the high court, but did clerk for now-Justice Samuel A. Alito Jr. while he was on the U.S. Court of Appeals for the Third Circuit.

Substantial Experience

Weil’s law firm bio doesn’t list any clerkship, let alone one for a Supreme Court justice.

Catherine M.A. Carroll, of Wilmer Cutler Pickering Hale and Dorr LLP, Washington, who was herself appointed by the court as an amicus in 2015, noted that “the Court does not give any public explanation for why it chooses particular attorneys for amicus appointments.”

But it’s likely that Weil’s “substantial experience as an appellate litigator in the Eleventh Circuit, where this case arises, was likely an important factor,” Carroll said.

Weil’s law firm bio says that she has “over 35 years of experience in both trial and appellate practice,” 25 of those as a federal prosecutor in the United States Attorney’s Office for the Northern District of Georgia.

She has “argued and briefed hundreds of cases before the Eleventh Circuit Court of Appeals, five of which she argued before the full court sitting en banc,” the bio says.

Weil declined to be interviewed for this story.

Switching Sides

Amici are typically appointed by the court to argue in favor of the decision below when neither party—including the winning one—agrees with the lower court’s reasoning, Jeffrey A. Lamken, of MoloLamken LLP, Washington, told Bloomberg Law in 2015.

That happens infrequently, Lamken said.

Here, the Eleventh Circuit determined that a 25 percent cap on attorneys’ fees in Social Securities cases applied to the attorney’s representation before both the agency and the court.

Both the plaintiffs’ attorney and the federal government disagree. The limit only applies to fees accrued while representing the plaintiff in federal court, not before the agency, they argue.

In its brief urging the justices to take the case, the U.S. Solicitor General suggested that the court “may wish to consider appointing an amicus curiae to defend the judgment of the court of appeals” given the government’s current position.

That’s just what the Supreme Court did.

New Faces

Weil’s appointment adds diversity to the amicus pool—and not just because she’s not a former clerk, Carroll said.

Only six of the previous 51 appointments—about 12 percent—have gone to women, according to Feldman.

“It’s nice to see the Justices using the appointment to bring in new faces, especially in a way that adds some more diversity at the podium,” Carroll said.

Against the Odds

When Weil takes the podium next term, she’ll face tough odds.

Invited amici lose approximately 75 percent of the time, Feldman said.

That makes sense because the justices typically appoint an amicus only when both parties agree that the position they’re defending is wrong.

Former Justice Clarence Thomas clerk Peter B. Rutledge, now a professor at the University of Georgia School of Law, Athens, Ga., was appointed to argue a case in 2008.

On his school bio he boasts that by winning his case, he joined “the ranks of a select few advocates who have successfully defended a judgment below when the government refused to do so.”

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com