Stephen R. McAllister, the Solicitor General of Kansas, has published “The Supreme Court’s Treatment of Sovereigns as Amici Curiae” in the Green Bag 2d. He posted the article on SSRN here.

Here is the abstract:

This article traces the history of current Supreme Court Rule 37.4, which exempts the federal government, state governments, and local governments from rules that otherwise require consent of the parties to file an amicus brief and that require disclosure of information regarding whether any person or entity other than the named amicus contributed financially or otherwise to the amicus brief. The article surveys the Supreme Court’s historical practices regarding amici filings by government entities, and locates the first rule of the Court addressing amicus filings, then traces the rule’s evolution forward to the current day. In particular, the article considers the treatment of both Indian Tribes and foreign nations as sovereign amici in the Supreme Court, and comments upon their exclusion from current Rule 37.4.