Amicus Practice at the Texas Supreme Court
Expanding argument time, a look at the differences between amicus practice at SCOTX and the U.S. Supreme Court, and a preview of next week's certified question.
At CLE events across the state, Justice Evan Young has discussed the paucity of amicus briefs at the Texas Supreme Court. In his view, the Court would benefit from more amici sharing their views with the Court. Earlier this month, he put his thoughts down on paper.
Some background on argument at SCOTX
Arguments at the Supreme Court of Texas, in contrast to the U.S. Supreme Court, are limited to 20 minutes per side (instead of 30 minutes). And SCOTX is much stricter about the argument clock. The U.S. Supreme Court has been known to allow cases to go significantly over time, particularly with the new post-COVID argument format. In October Term ‘23, the U.S. Supreme Court expanded argument by 5 minutes in City of Grants Pass v. Johnson to allow the Solicitor General to participate. The 65 minute argument lasted 146 minutes. And that is not unheard of. In October Term ‘21, the Court expanded argument to 70 minutes in Oklahoma v. Castro-Huerta, again to allow the Solicitor General to participate as amicus. The argument lasted 131 minutes. In contrast, a look at the length of the YouTube videos of SCOTX arguments shows that few arguments go more than even a few minutes per side over the allotted time. Even the most high profile constitutional law cases in the last few terms have stayed under 50 minutes total. So even in high profile cases at SCOTX, if a party thinks it will take more than 20 minutes to get their point across, they can’t count on being allowed to keep going once the official time has expired. Asking to expand argument time is a logical albeit rare request for an amicus.
Amici seek to expand argument time
In Perez v. City of San Antonio, the Court accepted a certified question from the U.S. Court of Appeals for the Fifth Circuit. (You can read my earlier post on certified questions here.) The Fifth Circuit asked the Court to interpret a relatively new provision in the Texas Constitution:
Does the “Religious Service Protections” provision of the Constitution of the State of Texas—as expressed in Article 1, Section 6-a—impose a categorical bar on any limitation of any religious service, regardless of the sort of limitation and the government’s interest in that limitation?
Perez v. City of San Antonio, 115 F.4th 422, 428 (5th Cir. 2024). Passed in response to the COVID-19 pandemic lockdown that restricted religious services, the Religious Service Protections provision says:
This state or a political subdivision of this state may not enact, adopt, or issue a statute, order, proclamation, decision, or rule that prohibits or limits religious services, including religious services conducted in churches, congregations, and places of worship, in this state by a religious organization established to support and serve the propagation of a sincerely held religious belief.
Article I, Section 6-a. No Texas court has interpreted this provision. Because of the unique posture of this case, SCOTX does not have the benefit of any lower court decisions. And, except for Justice Blacklock’s recent concurrence, no Texas court has even cited Art. I, Sec. 6-a in an opinion. See State v. Loe, 692 S.W.3d 215, 247 (Tex. 2024) (Blacklock, J., concurring). Only two amici filed briefs in the case: First Liberty Institute and the State of Texas. Yes, that’s right. In a free-exercise case involving a recently enacted provision of the Texas Constitution that no Texas court has addressed, two amici have filed briefs (First Liberty also filed a letter addressing Perez’s response to its initial amicus brief). Both amici filed motions to expand oral argument to grant them time to present argument.
Commonly, an amicus (other than the State) at SCOTX will ask the party they support to share several minutes of argument time. But First Liberty took the position that it is neutral, supporting neither party. So it made an unusual request for a private non-party—it asked the court to expand the argument and grant it five minutes. The Court denied the motion. That denial led Justice Young to write a statement respecting the denial.
Justice Young’s views on amicus practice at SCOTX
Justice Young noted that denying First Liberty’s motion is consistent with the Court’s practice. When the Court expands argument time, it is usually to allow the Solicitor General’s office to weigh in on the State’s unique interests in a case.1 (The SG later moved to expand argument time in Perez, and the Court granted the motion. Justice Busby noted that he would reconsider First Liberty’s motion. But the Court has not done so.) The more interesting part of Justice Young’s statement, to me, reiterates his comments from CLEs over the years—there aren’t enough amicus filings at the Court. Justice Young noted the extremely permissive attitude towards amicus briefing at the Court. In contrast to the federal appellate courts, which specify the time2 , length3, and, at the U.S. Supreme Court, prior to January 1, 2023, even required consent of the parties or leave of the Court, SCOTX welcomes all comers, in all forms, at any time.
Amicus filings at SCOTX range from single-page letters to full briefs. They can be filed “at the petition stage, after the Court calls for merits briefing, once the Court grants review, following oral argument, and on rehearing (including if the Court has denied review).” Statement at 3. And amici can file more than one brief as the case progresses. (Because of the way the Court handles Petitions for Review, different stages of the case focus on different issues. So amici may choose to focus on grantworthiness at the PFR stage and the merits if the Court requests briefs on the merits.) Despite the Court’s permissiveness, it is not inundated with amicus briefs. Justice Young lamented that the “Court is rarely confronted, much less deluged, with briefs that test the limits of propriety or that interfere with the performance of our duties.” And he “frequently regret[s] the absence of any amicus briefs in some important cases . . . .” Id. at 4. His view is supported by the data.
The data
I reviewed the number of amicus filings between August 1, 2023 and August 1, 2024. I used TAMES “event report” search, selecting amicus briefs, and setting those two dates as the limit. There were 292 briefs and letters (96 of the 292 were letters, rather than formal briefs) filed in 122 cases. Filings were more concentrated in the most high profile cases (18 amicus filings in State of Texas v. Zurawski and 14 in State of Texas v. Loe). Last term (September ‘23-June ‘24) amici filed in about 33% of argued cases. The prior term (September ‘22-June ‘23) the percentage was the same. And the number of filings is reasonably stable over the last few years. A writeup I came across on SSRN found 236 amicus filings in 134 cases in the 12 months between January 1, 2019 and December 31, 2019, identified using the same TAMES search. I looked for the numbers for the U.S. Supreme Court for comparison. Because of the high number, and the difficulty of finding them, I found a National Law Journal article analyzing ten terms. The article shows the stark contrast. In October Term ‘19 (October ‘19—July ‘20), the most recent included in the article, there were 911 amicus briefs filed in argued cases—that is more than three times the number of amicus filings in all cases at SCOTX. The two courts hear about the same number of cases per term (in the low to mid-60s). Amicus briefs were filed in 96% of argued cases at SCOTUS.
As Justice Young said in his statement respecting denial in Perez, SCOTX has a long way to go before it has more amicus filings than the Justices and their staff can manage. And those that “are not useful almost always self-identify (unintentionally) fast enough to avoid being burdensome.” Now that Justice Young has put his thoughts down on paper, essentially inviting more amicus briefs from anyone who receives or checks the weekly orders list, it will be interesting to see if amicus practice before the Court changes.
A few tips for amici
“Ordinary” cases could benefit most from more amicus practice. As Zurawski and Loe last term show, amici are aware of and offer their thoughts in the high-profile cases. And the more amici the greater the risk of the dreaded “me too” brief—a brief that says the same thing as others. Saying something different is valuable to the Court.4 But cases involving oil and gas, business disputes, administrative regulations, family law, and other significant but “lower profile” disputes can greatly benefit from amicus participation. In these cases, there is great value in technical or expert briefs that can provide additional information beyond what the parties have presented, or from business associations that can highlight the practical impact of a particular decision on a business sector and why, for example, SCOTX needs to take the case or why a particular proposed outcome is more administrable or more consistent with the way things have long been done in the industry, etc.
Another thing to keep in mind is the intended audience. Speak the court’s language. Think about the makeup of the court you’re writing for and the kinds of arguments that will resonate with them. This sounds obvious, but it seems often ignored. For example, in a statutory interpretation case, or a constitutional law case, filing a policy-oriented brief that advocates a particular outcome because it’s socially desirable or because it balances the interests (consistent with a form of tiered scrutiny), may be significantly less persuasive to a conservative court, if the case can be resolved on a plain-text reading or if the original public meaning runs contrary to the advocated outcome.
If you’re interested in Perez, which will be argued December 4, read on below.
Perez v. City of Antonio
Brief Background
Perez and Torres are members and ceremonial leaders of the Lipan-Apache Native American Church. They believe a specific bend in the San Antonio River (“Yanaguana”) located in Brackenridge Park is unique. That bend is central to their Creation story, and they believe the shape of the River, mirroring the constellation Eridanus, connects the physical and spirit worlds when Appellants perform central religious ceremonies. The trees surrounding the river at this bend, the cormorants that nest in those trees, the river itself, and the celestial river Eridanus uniquely connect the three spiritual worlds—the upper, middle, and under worlds.
The City of San Antonio, as part of a municipal bond project, plans to remove 69 of 83 sacred trees from the river bend to renovate a wall adjacent to the river and prevent cormorants from nesting there, using bird deterrence measures.
The Plaintiffs sued the City under the Free Exercise Clause of the United States Constitution, TRFRA, the Freedom of Worship Clause of the Texas Constitution, and the Amendment. They sought three forms of injunctive relief: (a) access for religious worship in the Sacred Area that the City had fenced off pursuant to the Bond Project; (b) an injunction against the Bond Project design that calls for the removal or relocation of nearly all trees from the area where the City proposed to carry out the Bond Project; and (c) an injunction against the City’s anti-nesting measures targeting cormorants in the Project Area. The district court granted an injunction for group worship access. But the court denied the preliminary injunction as to the tree removal and cormorant anti-nesting because “the City has met its burden of proving a compelling interest for public health and safety, and the equities favor the City on those two items.”
The Fifth Circuit initially affirmed over a dissent from Judge Stephen Higginson. On petition for panel rehearing, the court of appeals reversed and certified to SCOTX. The Court accepted the certified question.
The arguments
Plaintiff-Appellants argue that the Religious Services Amendment creates a categorical bar on government actions that prohibit or limit religious services. According to Appellants, the text and original public meaning support their argument: the Amendment categorically protects religious services like Appellants’ from government interference. Additionally, before the Amendment was adopted, TRFRA provided strict scrutiny protection for religious services. By amending the Constitution, more protection was clearly desired. That protection must therefore be an absolute bar on any restrictions on religious services. But, if SCOTX hold that the Amendment does not create a categorical bar, it should decide that any government action that limits or prohibits a religious service under the Amendment receives a “heightened” form of strict scrutiny. Knowing that strict scrutiny is ordinarily a death knell for a government action, the Appellants set forth a simple test: the worshipper need only prove that state or local government action “limits or prohibits religious services.”
Defendant-Appellees make a very narrow argument—the Amendment ensures that if a law allows secular activities to proceed while prohibiting or limiting religious services, that law is presumed unconstitutional. If the law allows any doors to be open, then the church doors must be open. Guaranteeing such equality between religious and secular activity in fact changes the law. It provides greater protection for religious services than existed before the Amendment. The categorical language of the Amendment is not indicative of an absolute protection for religious services. They point to Justice Kavanaugh’s concurrence in United States v. Rahimi, where he commented that read literally the First and Second Amendment “might seem to grant absolute protection, meaning that the government could never regulate speech or guns in any way. But American law has long recognized, as a matter of original understanding and original meaning, that constitutional rights generally come with exceptions.” 144 S. Ct. 1889, 1911 (2024) (Kavanaugh, J., concurring).
Amicus First Liberty makes an argument similar to Appellants, but with a slight variation, or perhaps clarification. Section 6-a categorically bars the government from prohibiting or limiting bona fide religious services. But Section 6-a’s scope reaches only government actions that wield the force of law to forbid or to dictate the character of bona fide religious services. It does not implicate every neutral application of law that carries some downstream consequence for religious services. For example, as their letter brief response to Appellants notes, the law does not protect a church from the public utility turning off its power for failure to pay to pay its bills. That is simply too broad an interpretation. But that does not mean that all facially-neutral laws of general applicability will be permissible. (First Liberty makes clear that it rejects that kind of Employment Division v. Smith understanding of its position in a response letter.). But they urge the Court to decide only the certified question and to let the federal courts figure out, based on the record, whether San Antonio’s actions fall within the provision’s scope.
Amicus State of Texas agrees with First Liberty’s position on the law that the Amendment provides a categorical bar when it applies. But it supports the City and contends that this case does not fit within the scope of that bar. The park renovation is a neutral regulation with only incidental effects on their religious service. That is a very different type of governmental action than those that sparked the Amendment—COVID-19 lockdowns that prevented people from attending religious services. The State acknowledges that the park renovation might incidentally affect Plaintiffs’ ability to perform a religious service in the park. But for that kind of infringement, existing constitutional and statutory protections for religious liberty: Article I, Section 6 of the Texas Constitution, the First Amendment, and TRFRA.
I’ll have more thoughts once we see how oral argument goes on December 4.
I hope everyone had a good Thanksgiving.
Both amici provided examples of when the Court has expanded argument time to provide an amicus some time. See, e.g., In re Geomet Recycling LLC (No. 18-0443); King St. Patriots v. Texas Democratic Party (No. 15-0320); City of El Paso v. Heinrich (No. 06-0778); City of San Antonio v. Pollock, (No. 04- 1118); Tooke v. City of Mexia (No. 03-0878). In each of these, the Court granted the Solicitor General’s request to expand time. But, interestingly, the most recent case I could find where the State asked for more time, the Court denied the request. In Miles v. Texas Central Railroad & Infrastructure, Inc. (No. 20-0393), the Solicitor General moved to expand arguments to 25 minutes per side and to share 10 minutes of Petitioner’s argument time. The Court denied the motion to expand and allowed the SG to share 5 minutes of Petitioner’s time.
See, e.g., Fed. R. App. P. 29(a)(6) (“An amicus curiae must file its brief . . . no later than 7 days after the principal brief of the party being supported is filed.”); U.S. Sup. Ct. R. 37.2 (a cert-stage amicus brief “shall be filed within 30 days after the case is placed on the docket or a response is called for . . . and that time will not be extended”); id. R. 37.3 (a merits-stage amicus brief “may be filed if it is submitted within 7 days after the brief for the party supported is filed”).
See U.S. Sup. Ct. R. 33.1(g) (prescribing the word limits and colors for the covers of every kind of brief, which Rule 33.1(a) requires to be printed in booklets measuring precisely 6⅛ by 9¼ inches).
There has been discussion over the years about the tension between party presentation and amicus briefing. The issue came to the U.S. Supreme Court in United States v. Sineneng-Smith, 590 U.S. 37 (2020). In that case, Sineneng-Smith was indicted for multiple violations of 8 U. S. C. §1324(a)(1)(A)(iv) and (B)(i). In the district court, she argued that these the provisions did not cover her conduct, and if they did, they violated the Petition and Free Speech Clauses of the First Amendment as applied. The District Court rejected her arguments, and she was convicted. She raised the same arguments in the Ninth Circuit. But, instead of addressing the case as framed, the court named three amici and invited them to brief and argue issues the panel framed, including a question Sineneng-Smith never raised: Whether the statute is overbroad under the First Amendment. Based on amici’s arguments, the Ninth Circuit held the laws were unconstitutionally overbroad. The Supreme Court reversed and remanded because the Ninth Circuit abused its discretion departing from the party presentation principle. “That principle forecloses the controlling role the Ninth Circuit took on in this case. No extraordinary circumstances justified the panel’s takeover of the appeal.” I’m not convinced that “offering something new” is anywhere near the egregiousness that led SCOTUS to reverse and remand Sineneng-Smith. I would not make this too much of a concern in framing an amicus brief.