That view was seconded by U.S. Circuit Judge William J. Kayatta Jr. of the First Circuit, who said, “I share the concerns of Judge Millett. … I don’t see why we’re having a requirement that people seek leave for something that’s essentially going to be automatically granted all the time anyhow.”
Panel member Louis A. Chaiten of Jones Day also pointed out that the U.S. Supreme Court, in a policy that took effect in 2023, eliminated the consent duty for amicus filings.
“I do think it’s a little odd that this rule is going against the precedent that the Supreme Court set in their revision last year to allow amicus briefs without consent or motion,” Chaiten said.
U.S. Circuit Judge Jay S. Bybee of the Ninth Circuit, who chairs the Advisory Committee on Appellate Rules, nonetheless encouraged panelists to authorize the proposal’s publication, while also acknowledging that the associated public comment period is likely to be boisterous.
“It is clear that our proposal is going to generate a lot of public controversy,” Judge Bybee said Tuesday. “[But] we’re at that Goldilocks moment in which we have to decide whether we’ve gone too far, haven’t gone far enough, or whether it’s just right. And we think that we need to hear from the public.”
