Judging from the Supreme Court’s docket, many attorneys spent their Christmas vacations putting together various amicus briefs supporting the taxpayers in King v. Burwell. Over the next few weeks, I’d like to survey those briefs and offer my reactions to some of them. I expect to offer specific thoughts on the briefs themselves and provide general thoughts on the role of an amicus in Court litigation.
I’m not an expert on amicus practice, but I can offer the perspective of someone genuinely undecided on the issue presented in King v. Burwell. From the materials I have reviewed (really, only the competing D.C. Circuit and 4th Circuit opinions), I can’t decide whether the statute unambiguously forecloses the IRS’s interpretation. Were a gun put to my head, I suspect that I would side with the challengers, but I try not to make legal conclusions while facing death threats.
Also, I’ve written a couple amicus briefs, including one at the petition stage and one at the merits stage. In writing those briefs, I sought out lots of informed advice about what makes a strong brief. I ended up getting very lucky, and my merits-stage brief was cited by the Court. In reviewing the King briefs, I also plan to offer some comments on which types of briefs might actually make a contribution to the Court. I suspect that true “friend of the Court” briefs are fairly rare, even among academic authors.
My next post will look at the Washington Legal Foundation’s brief. That brief discusses the role of the legislative grace canon and Section 36B, a topic about which I blogged earlier.