Tom Goldstein Files Amicus Brief On Behalf of His Firm In Support of Neither Party

August 20th, 2014

Tony Mauro reports that Tom Goldstein filed a brief on behalf of his firm, Goldstein & Russell, in support of neither party, supporting certiorari. There’s no party. Just Tom.

A little-noticed brief in a case before the U.S. Supreme Court this fall may launch a new genre of friend-of-the-court filings: written by a law firm on behalf of no client—not even law professors—and in support of neither side.

Or it might flop, its author Thomas Goldstein of Goldstein Russell readily acknowledges. “I’ve never heard of it being done before—the court is used to lawyers having clients,” he said in an interview. “But that has never deterred me from doing something before.”

Indeed Goldstein has shaken up the staid Supreme Court bar more than once—cold-calling losing lawyers in appeals court cases to drum up business in the 1990s, launching Supreme Court clinics at law schools, and in 2002, creating SCOTUSblog, a resource for high court practitioners and law junkies.

Goldstein says his brief in M&G Polymers USA v. Tackett may be the leading edge of an effort by the bar to assist the Supreme Court in new ways, not necessarily as advocates for a particular party.

Remarkably, Tom notes that the amici filing on behalf of clients are not “true amici,” but he is!

“The court is likely to be very concerned about coming up with a workable rule for everyone, not just the parties before them,” Goldstein said. As for amici, sometimes “they are not true amici. They have an ax to grind, a dog in the fight.” In his brief, Goldstein told the justices, “This is the rare true ‘amicus’ brief.”

And, Tom fancies that in certain cases, the Court will call for the views of an expert, similar to the CVSG when the United States has an interest. CVTG perhaps–Call for the views of Tom Goldstein.

Looking ahead, Goldstein said he hopes his brief could lead to something akin to the court’s so-called “CVSG” relationship with the U.S. solicitor general.

In cases where the federal government is not a party but might have some relevant things to say, the court often calls for the views of the solicitor general—CVSG for short—in the form of briefs that detail federal practices or other relevant information.
Goldstein posited that in select cases, the court could ask disinterested lawyers—or perhaps an organized Supreme Court bar group—to provide similar briefs when the government is not involved.

Here is the “Interest of the Amicus” statement from the brief:

This is the rare true “amicus” brief. It is respectfully submitted as a friend of the Court, with no agenda or desire to direct the outcome of the case. The only purpose of the brief is to provide the Court with factual information that may be useful in guiding its decision. Amicus is a law firm that practices before the Court. The firm has no interest in the outcome of the case. Nor is it aware that any of its clients has an interest in the outcome of the case. The genesis of the brief is a desire for members of the bar to provide the Court with assistance in deciding cases correctly. In particular, while many cases before the Court on the merits involve broad and general questions of law, or generate large numbers of thorough amicus submissions, others do not. A material number of cases instead involve important questions that arise in technical fields, yet generate few amicus briefs that elaborate on the legal issue and the factual context in which that issue regularly arises. In those cases, the bar has the ability to use its resources to provide the Court with that information. This appears to be such a case.

Tom explains that he was waiting for a case like this for years:

Goldstein, who said he has been looking for a case like M&G for years, thought it would be helpful to write an amicus brief that would give the court data that parties or other amici might not provide. Namely, a survey of collective bargaining agreements that tallies how many contain different provisions that lower courts have looked for in determining whether retiree benefits vest.
Even though he had no client in the case, Goldstein surveyed 100 collective bargaining agreements and told the court the results in his brief. As court rules provide, he sought and got permission from the parties to file the brief, but has received no feedback from them.

Unsurprisingly, Tony was unable to find any lawyer willing to comment on this brief.