During Supreme Court arguments Tuesday in the civil procedure case Hall v. Hall,  Hogan Lovells partner Neal Katyal made reference to a brief filed on behalf of eight former federal district court judges that underscored the “great discretion” judges have when it comes to case management.

Chief Justice John Roberts Jr. asked Katyal, “what are we to make of the brief” from the handful of judges? “I don't know that that [brief] represents the perspective of district judges generally.”

Katyal did not quibble with Roberts, but said the brief was a “data point” for the court as the justices sort out the complexities of the case, which deals with the finality of certain district court orders, a determination that affects when judgments can be appealed.

The exchange highlights the steady stream in recent years of amicus briefs filed with the court by former or retired government officials. The trend accelerated with the much-cited brief filed on behalf of former military leaders in favor of affirmative action in the 2003 case Grutter v. Bollinger.

“There are usually a few of these briefs filed each term,” said Arnold Porter Kaye Scholer lawyer Anthony Franze, who tallies amicus filings.  “I think they can be very helpful in providing an on-the-ground perspective that can give the justices insights into the real-world implications of the Court's decisions.” Franze said that in the last two terms, justices have cited briefs from former White House counsel, former state attorneys' general, former officials of the Office of Legal Counsel, and retired federal judges.

Ruthanne Deutsch, founding partner of Deutsch Hunt, a two-lawyer appellate shop launched in 2016, wrote the brief mentioned in the Hall v. Hall brief—along with other “former” briefs in the past. Last week she spoke with Supreme Court Brief.

How did you come to write the former judges brief' in Hall v. Hall, and is it a pro bono representation?
I was contacted by Neal Katyal, counsel for respondent. Neal and his team had already been in touch with the former judges, who had submitted an amicus brief in Gelboim v. Bank of America Corp. (a key precedent to the Hall case) and were interested in filing again in Hall. They were looking for a writer and Neal reached out to me. Neal knew of our firm's work, from our amicus brief last Term in Endrew F. v. Douglas County School District. We took on the Hall project pro bono. It was an honor to write for former district court judges and, we believe, a service to the Court.

What do you think former judges bring to this case and others that other amici cannot provide?
Judges bring hands-on experience in the courtroom, and a dedication to the judicial process based on that experience. With the rarest of exceptions, presiding judges speak to the Supreme Court only through their opinions. But retired judges have the freedom to speak directly to the court as amici. Much like other former public servants who file amicus briefs—former military officials in Grutter, former counterterrorism officials in this term's Jesner v. Arab Bank (another brief we did)—former judges are well-situated to share with the Court the practical effects that a decision will likely have, with no personal or financial interests at play.

Was it unusually difficult to work with judges, who are accustomed to being judges, not clients?
We circulated a complete draft to the entire group a few weeks before the filing date. Some judges gave thumbs' up with little or no edits; others gave more extensive and quite helpful edits. My partner Hyland Hunt and I have each done clerkships on the courts of appeals and for the Supreme Court, but neither of us clerked at the district court level, so it was fun to have the opportunity to work with this group of former trial judges. And, especially with the more hands-on editors, it had the feel of clerking.