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FTC to SCOTUS: How About Striking Some Amicus Briefs?

FTC on Monday sent a letter to Supreme Court Clerk Scott Harris asking that the court consider adopting a new rule that would make it easier to strike amicus briefs that, based on who’s filed them, create an appearance of impropriety.

This would cover briefs submitted or signed onto by close family members or their employers or by publicly traded companies in which the justice or their family owns stock.

Such a rule, FTC proposes, should be based on FRAP 29(a)(2), which since being adopted in 2018 has permitted circuit courts to “prohibit the filing of” or “strike an amicus brief that would result in a judge’s disqualification.”

This letter comes days after the court granted cert. in an affirmative action case in which an organization on whose board Ginni Thomas sits, the National Association of Scholars, submitted an amicus brief.

Though some pundits have called for Justice Thomas’ recusal, striking the brief would be a proper use of the court’s authority and would remove an appearance of impropriety in this case.

The court on Wednesday acknowledged receipt of the letter but has not formally responded.

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