A law professor who submitted an amicus curiae brief in Howard Jarvis Taxpayers Association v. Padilla, which was argued last week, writes in today’s Daily Journal[subscription] about what he calls “[a]n interesting and perplexing problem: What does an amicus do when the amicus brief is called out by a justice during oral arguments, and the justice is incorrect?”
It’s strictly a rhetorical question, however, because the professor isn’t interested in discussing a Supreme Court practice issue. Rather, the column is in effect a supplemental, post-argument amicus brief that the court would almost certainly never accept if the amicus were operating within the rules. It gives a lengthy explanation why the professor believes that the justice who “called out” the amicus (unnamed in the column, but it was Justice Goodwin Liu) was incorrect in stating that the amicus brief “cited the wrong revision” of two reports by the California Constitution Revision Commission. The column’s substance contains argument that the professor himself admits had been omitted from the amicus brief — “the amicus considered adding an explanatory note in an already overly long brief.” If the column’s intent to evade the rules were not transparent enough already, it concludes, “Hopefully, justices read newspapers.”
The article behind the DJ paywall is by Professor Michael Salerno of Hastings.