U.S. Supreme Court

Tom Goldstein's amicus brief is filed on behalf of no one, and doesn't take sides


The lawyer who founded SCOTUSblog is trying a new tack in an amicus brief filed with the U.S. Supreme Court.

Supreme Court litigator Tom Goldstein of Goldstein & Russell has filed a brief that doesn’t take sides and isn’t written on behalf of a client, Law.com reports.

“I’ve never heard of it being done before—the court is used to lawyers having clients,” Goldstein told Law.com. “But that has never deterred me from doing something before.”

At issue in M&G Polymers USA v. Tackett is when retiree health benefits vest under collective bargaining agreements. The case is likely to focus on one particular agreement, without a broader view of how a ruling will affect other collective bargaining agreements, Goldstein’s brief (PDF) says. So Goldstein looked at 100 collective bargaining agreements with language on retiree health benefits, focusing on how vesting provisions have been interpreted by the courts.

Six percent of the agreements, for example, said retirees will get health benefits “for life.” Two circuits say the language shows a clear intent to vest, while a third says the language is not conclusive, but overcomes a presumption against vesting, Goldstein writes in the brief.

Goldstein says his idea could lead the Supreme Court to ask disinterested lawyers or bar groups to submit amicus briefs providing additional data to the court.

Law.com spoke with Supreme Court litigator advocate Roy Englert Jr. for his take on Goldstein’s effort. Englert told the publication that providing helpful information to the Supreme Court is “in the very best traditions of the bar.”

Englert added, however, that “it is far from obvious why this is a good use of the authors’ time.”

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