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Fair Courts Update: Federal Judiciary Considers Financial Disclosure Rule for Amici

This Fair Courts Update covers new financial disclosure rules being considered for federal amicus brief filers, progressive support for Supreme Court expansion legislation, the creation of a court diversity commission in Michigan, and more.

Last Updated: January 14, 2022
Published: March 15, 2022

Federal Judiciary Panel Open to Broader Financial Disclosures for Amicus Brief Filers

On January 4, judges on the federal judiciary’s Committee on Rules of Practice and Procedure expressed interest in adopting stronger financial disclosure rules for groups that file amicus briefs in federal court rather than having new changes imposed by Congress.

The judiciary first began to consider changes to the current rule, which only requires amici to disclose whether a party provided financial support for the preparation or submission of their brief, after Democratic lawmakers introduced a bill in 2019 to impose new requirements for amicus filers.

The bill, the AMICUS Act, would require any entity that files more than three amicus briefs a year in the U.S. Supreme Court or the federal appeals courts to disclose all donors who gave over $100,000, or 3% of their gross annual revenue.  

Five days before the panel’s meeting, Chief Justice John Roberts released his annual year-end report, in which he addressed recent efforts by Congress to reform the federal judiciary. Roberts wrote, "the judiciary’s power to manage its internal affairs insulates courts from inappropriate political influence and is crucial to preserving public trust in its work as a separate and coequal branch of government.”

Progressive Lawmakers Endorse Supreme Court Expansion Bill

On January 5, the Congressional Progressive Caucus endorsed the Judiciary Act of 2021, a bill that would expand the U.S. Supreme Court by four seats, bringing the total number of justices from 9 to 13.

According to The Hill, Rep. Pramila Jayapal, who co-chairs the Caucus, stated in a press release that this legislation is necessary because the current Court has been “filled by a partisan, right-wing effort to entrench a radical, anti-democratic faction and erode human rights that have been won over decades.”

In recent months, the bill, which was introduced in the House by Rep. Hank Johnson and the Senate by Sen. Ed Markey, has gained increased support from legislators, most recently Sen. Elizabeth Warren. In a December op-ed in The Boston Globe, Warren wrote, “Rebalancing the court is a necessary step to restore its credibility as an independent institution, one that works for the American people and not just for the wealthy and the powerful.” “Without reform,” she says, “the court’s 6–3 conservative supermajority will continue to threaten basic liberties for decades to come.”

Two Justices Dissent from Michigan Supreme Court Order Creating DEI Commission

On January 5, the Michigan Supreme Court issued an administrative order creating a new two-dozen member commission to “assess and work towards elimination of demographic and other disparities within the Michigan judiciary and justice system.”

Of the court’s seven justices, two dissented. The commission “will serve only to engender conflict and undermine the public’s faith in the judicial branch as impartial arbiters,” wrote Justice David Viviano in a dissent joined by Justice Brian Zahra. Both Viviano and Zahra were nominated by Republican governors.

Justice Elizabeth Welch, who will co-chair the commission, wrote that this new body “will assist the Court in recognizing its deficiencies and blind spots as an institution and an employer” and help build “a judiciary that is more reflective of and better situated to serve the people of Michigan.”

The Commission will serve as an advisory body, but all proposed changes must be approved by the court before being implemented.

Judges Refuse to Recuse from Voter ID and Redistricting Cases in North Carolina, Arkansas

On January 7, two North Carolina Supreme Court justices declined to recuse themselves from NAACP v. Moore, a case challenging two legislatively-proposed constitutional amendments regarding voter ID and the state’s income tax, despite requests from the plaintiffs. One of the justices, Justice Phil Berger Jr., is the son of the state Senate president, and the other justice, Justice Tamara Barringer, is a former state legislator who drafted the measures being challenged.

The justices’ decisions were announced shortly after the North Carolina Supreme Court issued an order allowing justices to decide for themselves whether they should step aside when they have a potential conflict. The Brennan Center filed an amicus brief arguing that independent review of recusal motions is essential to preserving the public’s confidence in the courts.

Similarly, on January 5, U.S. District Judge Lee Rudofsky declined to step aside from State Conference NAACP v. Arkansas Board of Apportionment. The case challenges Arkansas’s newly drawn state House maps that were created by a three-member panel made up in part by Gov. Asa Hutchinson and Attorney General Leslie Rutledge. The plaintiffs asked Rudofsky to recuse himself because he had donated to both Hutchinson’s and Rutledge’s political campaigns, and previously worked as solicitor general for Rutledge.