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Ahead of Tomorrow's Courts Subcommittee Hearing in the Senate, We Revisit the "Amicus Problem"

By Amanda Dworkin, FTC law clerk 

In the past Fix the Court has reported on which companies Supreme Court justices own stock in, whether those companies filed amicus briefs in cases and how those justices ruled in said cases. Our findings for OT19 are located here

From our research we’ve identified what we call the “amicus problem”: if a company is a named litigant in the case, then a justice who owns stock in that company must recuse themselves, per federal law, 28 U.S.C. §455(b)(4)But if the company just files a “friend of the court,” or amicus, brief, then that justice can sit on the case. And that’s a problem.

Recently, we’ve noticed a new iteration of the amicus problem. Fewer individual companies seem to be filing amicus briefs these days. Instead, they’re often hiding behind their associations and membership institutions. When they do file briefs, they seem to be doing it to virtue-signal in civil rights cases.

Take for example Thermo Fisher Scientific, which Chief Justice Roberts owned stock in as of Dec. 31, 2019, i.e., the last date for which we have reliable data.

Thermo Fisher did not disclose, nor was it required to disclose, its membership in the Intellectual Property Owners Association when the Association filed an amicus brief supporting the respondent in Peter v. NantKwest. Roberts and his eight colleagues ruled for NantKwest.

But Thermo Fisher listed itself as one of the “206 Businesses” (p. 6 of brief) that filed an amicus in support of LGBT employee protections in Bostock v. Clayton County. Roberts and five of his colleagues ruled for Bostock.

These twin developments – fewer individual business briefs overall and more business involvement in civil rights cases – mean we won’t be able to identify reliable data for the type of terms-long studies we’ve done in years past.

But the takeaways remain clear:
1. Filing under a membership institution strips transparency from judicial process, limiting the public’s ability to trace how the justices’ decisions track with their stock ownership.
2. Judicial accountability must be prioritized over companies’ goodwill marketing.
3. Amicus funding should be more transparent.

The latter – amicus funding transparency – is the subject of a Senate Judiciary Committee Federal Courts Subcommittee hearing tomorrow afternoon.

We’ll be watching, and so should you.

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