By Rachel Totten Keith
Every day in U.S. courtrooms, judges, jurors, and litigants are called to make decisions based on laws and court room procedures that they may or may not be familiar with, especially the newer and more complex laws. For each case, the court “will mainly hear only the evidence and testimony from those witnesses the parties choose to present,” according to attorney Marc L. Penchansky. “This could be disconcerting when the holding has potentially large and universal impact on a profession, an activity or an industry.” It almost seems unjust to hinge a a potential controversial policy on litigants whose scope of arguments are limited by the court itself.
ENTER THE AMICUS CURIAE
Latin for “friend of the court,” amici curiae have been used by courts since ancient Rome and since the 19th century in United States courts, but only in the last hundred years has the amicus curiae become an indispensable part of the U.S. legal system. Initially, amici curiae provided specific advice and information to the judiciary. Now, they primarily represent a third-party’s interests for a myriad of reasons. Cornell University Law School defines an amicus curiae as, “a person or group who is not a party to a lawsuit, but has a strong interest in the matter, will petition the court for permission to submit a brief in the action with the intent of influencing the court’s decision.” Amici are considered beneficial by the U.S. Supreme Court, according to Rule 37.1 of the Rules of the Supreme Court of the United States. The rule states that as long as amici introduce new information to the court, “. . .they may be of considerable help to the Court.” However, an amicus brief that does not serve this purpose, “burdens the Court, and its filing is not favored.”
PURPOSE OF THE AMICUS BRIEF
Interest groups and political action committees use amicus briefs as a highly visible and cost-effective way to influence the courts, gain exposure, and advocate for their position, especially on policy-oriented issues (Neubauer and Meinhold 208). First, amicus briefs are one component of a strategy that organizations use to support a litigant without directly sponsoring or representing the litigant themselves. These organizations actively seek cases in which a potential outcome would negatively affect its members or establish a dangerous precedent contrary to that movement’s cause. As an amicus curiae, the collective group can inform the judiciary of the far-reaching consequences and implications on society, as a result of a disposition. The outcomes of the lawsuits “facilitate the development of legal doctrine useful to their cause” (Neubauer and Meinhold 427).
In contrast, experts, think-tanks, and non-profit corporations file amicus briefs for opportunities to educate the court on an issue that they have studied extensively and that may be affected. Subject-matter experts also file briefs when the court requires merely a more technical understanding of the expert’s field in order to make a more informed judgment (Bona). Participating in the U.S. legal system by writing amicus briefs can enhance an expert’s academic résumé and reputation.
Because the amicus curiae’s arguments are not limited to the facts of the case as the litigants’ arguments, there is a wide latitude to present arguments that discuss historical cases, sympathetic statements, and to further explore arguments a party did not have time or resources to properly conclude. Amicus briefs provide the opportunity to introduce information that is related, but otherwise would not be a part of a litigant’s argument.
AMICI AND THE SUPREME COURT
In the term from 2014-2015, 98% of Supreme Court cases included amicus briefs. In fact, amici curiae “filed 781 briefs in argued cases, averaging about 12 per case. That’s more than double the briefs-per-case filed in the 1990s, and 12 times those filed in the 1940s-1950s” (Franze and Anderson). In lawsuits that the U.S. government has a significant interest, the Solicitor General files amicus briefs on behalf of the executive branch, representing the president. At all levels, amici curiae can file briefs on the behalf of the government, a common example being when states file briefs with the Supreme Court over how a ruling would affect its people.
Because of the pervasiveness of interest groups and the mounting frustration with a bloated, sluggish government, it is no wonder the popularity and frequency of amicus briefs have exploded over the past twenty years, from the appellate level to the Supreme Court. It is more cost effective for organizations, such as non-profits, activists, and interest groups, to file briefs to advocate their position than support litigants directly. In fact, filing an amicus brief is a win-win situation—attorneys get free publicity and a chance to do some creative writing with the amicus curiae, the amici curiae get free publicity and support for their cause, and the litigants get free legal support; the amicus curiae is a “friend,” indeed.
Penchansky, Marc L. “Let’s Be Friends: When to File an Amicus Curiae Brief.” Martindale.com. Internet Brands, Inc., 2015. Web. 19 Nov 2015.
Cornell University Law School. “Wex.” Law.Cornell.edu. LII, 2015. Web. 20 Nov 2015.
Neubauer, David W., and Stephen S. Meinhold. Judicial Process: Law, Courts, and Politics in the United States. Boston: Wadsworth, Cengage Learning, 2007. Print.
Bona, Jarod. “Why You Should Consider Filing an Amicus Brief in an Appellate Case.” Theantitrustattorney.com. Bona Law PC, 29 May 2015. Web. 1 Nov 2015.
Franze, Anthony J., and R. Reeves Anderson. “Record Breaking Term for Amicus Curiae in Supreme Court Reflects New Norm.” NationallawJournal.com, 19 Aug 2015. Web. 20 Nov 2015.