Amicus Curiae

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Amicus Curiae

A third party submitting a brief to a court expressing views on a legal question before the court. An amicus curiae, literally meaning “friend of the court,” is not an actual party to an action. He, she, or it is an interested third party who attempts to provide the court with information or arguments that may not have been offered by the actual parties. So long as the parties to a controversy agree, amicus briefs can be filed at virtually any stage of the legal process. Such submissions, however, are typically submitted with cases under review by appellate courts. Indeed, most cases heard by the U.S. Supreme Court are accompanied by at least one amicus brief. The amicus participant is typically representing an interest group. It is not unusual to have an amicus brief from the NAACP or ACLU in civil rights or civil liberties cases. Similarly, many economic interest groups and professional as-sociations present amicus arguments in various cases having commercial content. Government entities may also act as amicus participants. In fact, the federal government, represented by the solicitor general, frequently appears as an amicus participant on questions that relate directly to federal policy, such as environmental protection or Affirmative Action (Apellate Judicial Process). (1)

Analysis and Relevance

Amicus curiae participation is a common court-related interest group activity. It typically occurs in cases with substantial public policy ramifications. As the U.S. Supreme Court considered whether a woman has a constitutional right to an abortion in Roe v. Wade (410 U.S. 113: 1973), amicus briefs were submitted by 36 pro-abortion and eleven anti-abortion organizations. Some of the groups filed jointly. Amicus arguments tend to focus on the broader implications of a particular case. Submission of an amicus brief is not a matter of right, however. With the exception of amicus participation by an agency of the federal government, an amicus brief may be filed only with the consent of both parties in an action, on motion to the court, or by invitation of the court. (2)

Amicus Curiae Definition

(Lat. a friend of the court). One who, for the assistance of the court, gives information (definition of Amicus Curiae Is based on the The Cyclopedic Law Dictionary ) of some matter of law in regard to which the court is doubtful or mistaken. Coke, 2d Inst. 178; 2 Viner, Abr. 475. The information may extend to any matter of which the court takes judicial cognizance.

Amicus Curiae Use and Impact

By Kenneth Jost, a former editor of The Los Angeles Daily Journal. He is a staff writer for Congressional Quarterly and author of The Supreme Court Yearbook.

About 90 percent of the U.S. Supreme Court?s cases in many years attract at least one amicus brief. Who?s writing this stuff? And does the Court really pay attention?

An unofficial count for the 2000 year’s term found about 420 amicus briefs on the merits were filed in the Court’s 81 argued cases.

The Court itself apparently sees no problem with the rising stacks of paper before it. Beginning in the 1960s, the Court has moved unmistakably to an open-door policy on briefs from outside groups. According to Thomas W. Merrill, a professor at Northwestern University School of Law in Chicago, the explosion in amicus filings is driven by the Court’s growing power and the emergence of an elite amicus bar in Washington, D.C. Competing groups now engage in an escalating legal arms race. “If one side gets an amicus brief, the other side gets an amicus brief to offset that,” Merrill says.

The conservative groups appear to be more than able to hold their own. “When I first started doing this, I was the only one on the prosecution side,” says Kent Scheidegger, legal director for the Criminal Justice Legal Foundation. “Now there are others.”A century ago, amicus briefs were a rarity at the Supreme Court. According to a study by Northwestern’s Professor Merrill and Joseph D. Kearney, an associate professor at Marquette University Law School, amicus briefs were filed in only 10 percent of the Court’s cases in the early decades of the 20th century. As late as 1966, one expert derided their influence on the Court as highly exaggerated, an example of “political folklore.”

Today, around 90 percent of the Court’s cases attract at least one amicus brief. Most are accompanied by more than one, almost always with groups on both sides. High-profile cases on such issues as abortion, affirmative action, church-state relations, or tort reform can generate dozens of briefs from advocacy groups representing an array of economic interests and ideological viewpoints.

“[Filings] have gone up quite dramatically, both in absolute numbers and in the percentage of cases that have amicus briefs,” Merrill says. He and Kearney counted 4,907 amicus filings in the decade from 1986 to 1995. That’s an average of nearly 500 a year, compared to a total of 531 amicus briefs filed in the decade from 1946 to 1955.

By the 1960s three groups in particular had established a presence at the Court through direct litigation and recurring appearances as amici. The ACLU helped bring about a fundamental shift in the Court’s attitude toward freedom of speech and freedom of religion. The NAACP Legal Defense and Educational Fund charted the way to ending legally mandated racial segregation. And the AFL-CIO helped tilt the Court toward a generally pro-union interpretation of federal labor laws.

In varying degrees, all three groups combined legal advocacy with sociological or economic analysis in the style established by attorney Louis D. Brandeis in the famous turn-of-the-century case Muller v Oregon (1908) 208 US 412. The future Supreme Court justice filed a brief defending a ten-hour-day law for women workers by packing his lengthy document with sociological information about the effect of long working hours on women’s health.

Today, advocates and experts agree that “Brandeis briefs” from outside groups serve an important role. “The briefs contribute descriptions of clinical and scientific information that supplements what’s in the parties’ briefs,” says Richard G. Taranto of Washington’s Farr & Taranto, a Supreme Court boutique firm. “The briefs are quoted and cited by the Court because of that.”

The absence of amicus filings sometimes draws as much notice as do multiple briefs. Dissenting from the Court’s decision in 1996 to recognize a psychotherapist privilege in federal courts, Justice Antonin Scalia noted that the Court had received 14 briefs supporting the privilege and none on the other side. “There is no self-interested organization out there devoted to pursuit of the truth in the federal courts,” Scalia wrote in Jaffee v Redmond, 518 US 1, 35.

Once the Court grants cert, there is relative balance between the number of light-green briefs filed on the merits for the petitioner, and the dark-green briefs filed on the merits for the respondent. (The government’s briefs are gray, whether filed as a party or as an amicus.) Conservatives make no bones about their efforts to correct what they regard as a disparity in the past. “We’ve seen environmental groups and labor groups very active for many years,” says Robin S. Conrad, senior vice president of the litigation arm of the U.S. Chamber of Commerce. “Business groups are finally seeing the light.”

The ACLU now has a well-financed adversary on church-state issues in the American Center for Law and Justice, founded by evangelist Pat Robertson. Environmental groups have to contend with trade associations, as well as the Pacific Legal Foundation and the Washington, D.C.-based Defenders of Property Rights, in regulatory takings cases. Civil rights organizations go up against such groups as the Institute for Justice and the Center for Equal Opportunity in affirmative-action and voter-redistricting cases. And criminal-defense advocates match up against an array of police and pro-law enforcement groups, including the Criminal Justice Legal Foundation.

Surprisingly, liberal groups appear reluctant to raise any complaint about being outgunned. “In important Supreme Court cases, it breaks down about evenly,” says John Echeverria, director of the Environmental Policy Project at Georgetown University Law Center in Washington, D.C., who often files amicus briefs for environmental groups. Even though corporate interests may file more briefs, Echeverria says, the number of filings doesn’t always make a difference in a case. “Adding six more briefs does not add much to their impact,” he says.These days, nobody plays the amicus game better than the WLF. Founded in 1977 by Daniel Popeo, a former White House staffer in the Ford administration, the Washington Legal Foundation (WLF) consciously copied the mix of media outreach and litigation used by liberal public interest groups. It quickly commanded attention by representing GOP lawmakers in separate challenges to President Carter’s authority to abrogate a mutual defense treaty with Taiwan and to cede the Panama Canal to Panama.

In the Supreme Court’s 2000 term, the Washington Legal Foundation filed amicus briefs in 18 cases, either on the merits or at the certiorari stage. It counted eight wins and four losses among the dozen cases in which it filed amicus briefs on the merits. “Five of those victories were decided by 5-4 margins,” Samp notes. “So it’s plausible to think that our briefs made a difference in the outcome.”

The growth and apparent effectiveness of the amicus business have led a number of academics to study the impact-if any-amicus briefs have on the Court’s decision making. Oddly, the law professors mostly came up dry. Professors Merrill and Kearney have conducted the most systematic research to date on the subject. They examined Supreme Court decisions from 1946 through 1995, looking for statistical evidence that amicus briefs influence case outcomes.

The results, published in January 2000 in the University of Pennsylvania Law Review, found that amicus briefs filed in support of respondents “enjoy higher success rates,” while “small disparities” in the number of briefs-one or two briefs for one side versus none on the other-“may translate into higher success rates.” But Merrill and Kearney found no evidence that a massive outpouring of briefs in favor of one side increased that party’s chances of success.

Merrill says he and Kearney were surprised by the findings and unsure of their implications. “Without strong evidence that amicus briefs have much impact,” Merrill says, “it’s sort of a puzzle why people file these things, and file them in greater and greater numbers.”

For their part, advocacy groups generally acknowledge that they assume the effectiveness of their work partly as a matter of faith. “It’s almost like sending a message in a bottle out in the ocean,” says Jeffrey White, associate general counsel of the Association of Trial Lawyers of America (ATLA). “We like to think that these have impact, and I believe that they do. But if you ask me to point to hard examples, they’re difficult to come by.”

“I suspect that they don’t make a huge difference in most cases, but I think they can be important in some,” says the WLF’s Samp. “It’s difficult to know which ones they will be important in. So that’s one reason for filing in a lot of cases.”

Visible evidence of the impact of amicus briefs is actually not that hard to find. For one thing, the justices have the stack of briefs on the bench during oral arguments and some of the justices-Ruth Bader Ginsburg and Stephen G. Breyer, in particular-often ask questions based on information or arguments in the amicus briefs.

Justices also cite amicus briefs in their opinions. In their study, Merrill and Kearney found that the frequency of such citation has markedly increased over the five decades that they studied. From 1986 to 1995, they found, arguments from amicus briefs were referred to in 15 percent of the Court’s decisions-more than double the rate of the first three decades in their study.

The height of ambition for an amicus filer is for the Court to base a decision on an argument made only in its own brief, not in any other filings. That happens rarely but still often enough to encourage amicus brief writers. In the most significant such case, Mapp v Ohio (1961) 367 US 643, 646 n3, the Court imposed the exclusionary rule on states even though that position was urged only by the ACLU as amicus.

In 1999, the U.S. Chamber of Commerce took credit for a partial victory for employers in an important federal civil rights case, Kolstad v Am. Dental Ass’n (1999) 527 US 526. The Court backed the plaintiff’s effort to establish a relaxed standard for punitive damages in Title VII job discrimination suits. But a majority of the justices-including the two dissenters on the main point-went on to protect employers from vicarious liability if they made “good-faith efforts” to comply with the law. The Chamber of Commerce was one of two amici to raise that precise issue.

Even a defeat can translate into a victory of sorts. In 1999 the libertarian Institute for Justice filed a an amicus brief in support of a California law setting lower welfare benefits for new residents. Although the law was ruled unconstitutional (Saenz v Roe, 526 US 489), the Court relied in part on the 14th Amendment’s little-used Privileges and Immunities Clause, which the institute had emphasized in its amicus brief. “Much to our great delight, even though the parties paid hardly any attention to the Privileges and Immunities Clause, the Court did,” recalls Douglas W. Kmiec, one of several authors of the brief and dean of the Columbus School of Law at The Catholic University of America in Washington, D.C.

Amicus brief writers take comfort in less tangible accomplishments as well. Attorney Lisa B. Kemler of Alexandria, Virginia, who cochairs the amicus brief committee for the National Association of Criminal Defense Lawyers, sees evidence of her group’s filings in some of the Court’s recent rulings narrowing federal criminal statutes. ATLA’s White thinks the plaintiffs group influenced the Court’s reluctance to set constitutional limits on punitive damages in civil litigation.

For his part, Scheidegger of the Criminal Justice Legal Foundation is sure that Chief Justice Rehnquist was familiar with his brief in the 1993 decision Wisconsin v Mitchell, 508 US 476, upholding a Wisconsin hate-crime penalty-enhancement law. Rehnquist’s opinion closed by citing a 50-year-old case that Scheidegger says was mentioned only in his brief. Did that make his day? “Yes,” Scheidegger says. “I know, and the justice who wrote the opinion knows. Nobody else knows, but it gives you a warm feeling anyway.”

Carter Phillips, who heads the Supreme Court practice group at Sidley Austin Brown & Woods in Washington, D.C., says amici often exert an important influence by shaping the rationale for the Court’s decision even if they do not affect the actual outcome. “There are great opportunities to analyze particular problems in an area of the law and to analyze them extensively,” Phillips says. “You have 30 pages to deal with a single issue. You can influence the Court in that way.”Theoretically, the rise of the amicus business poses two problems. The number of briefs filed might become burdensome, too much for the justices to read or analyze. More ominously, amicus briefs might skew the Court’s decision making toward the side with the bigger legal arsenal rather than the better legal arguments.

Advocates and experts alike discount both fears. Court watchers, including former clerks, invariably say the justices can handle their in-boxes. One former clerk contends that, with the exception of Justice Breyer, the justices rely on their staffs to read amicus briefs. But two other former clerks say that all the justices read the briefs themselves.

“It usually doesn’t take very long to figure out which ones are genuinely worth paying attention to,” adds frequent Supreme Court advocate Taranto, who clerked for Justice Sandra Day O’Connor in the early 1980s. “I suspect there is a fairly quick winnowing process.”

An amicus brief could mislead or divert the Court, since the information and arguments in it reach the justices without going through a full adversary process in the lower courts. The only safeguard is a rule adopted by the Court in 1997 that requires an amicus to disclose any assistance in writing the brief from a lawyer for one of the parties, as well as any outside financial assistance in filing it. But to some degree, the Court’s own adversary procedures protect against the danger.

For example, one of the amicus briefs filed in the American Trucking Associations’ challenge to the EPA’s Clean Air Act regulations included the name of Gary E. Marchant, a law professor at Arizona State University in Tempe. In its reply brief, the government noted that Marchant had failed to mention that he served as one of the American Trucking Associations’ primary counsel in the case at the appellate level. (Marchant says he had “no relationship” to the associations, or anyone else in the case, when the Supreme Court brief was filed.)

In addition, lawyers and experts from across the ideological spectrum scoff at the notion that the justices could be swayed by too many amicus briefs. “These are all pretty smart justices,” says James Burling, an attorney with the Pacific Legal Foundation in Sacramento. “They can see the merits of the issue for what they are. I don’t think that 20 briefs make an argument in a case any better than one brief does.”

Indeed, too many briefs in a single case may even be counterproductive, according to Marci Hamilton, a professor at Yeshiva University’s Benjamin N. Cardozo School of Law and another former O’Connor clerk. “The point of multiple filings may be to persuade the Court that there is public pressure out there,” Hamilton says. “But that can have a boomerang effect, because the Constitution is structured so that the Court won’t be controlled by political pressure. The Court can become resistant because pressure is inconsistent with its role.”

Professor Merrill says he doesn’t think there’s much about the amicus industry to cause alarm. “I wouldn’t say amicus briefs are distorting the way the Court decides cases or are interfering with the way the Court reaches results,” he says. “The truth may be the opposite: Amicus briefs may occasionally help the Court and occasionally help to level the playing field.”

“I don’t see any severe problem here,” adds Neal Katyal, a law professor at Georgetown University. “It’s our Supreme Court. If people want to make arguments about a case and the impact the case has on their organization, that’s a healthy thing for democracy.”

Amicus Curiae and the United States Constitution

According to the Encyclopedia of the American Constitution, about its article titled AMICUS CURIAE, the amicus curiae originally was a lawyer aiding the court. Today in American practice, the lawyers represent an organization, which is the amicus; the group’s “friendship” to the court has become an artifice slightly disguising the fact that it is as much help.

Concept of Amicus Curiae

In the U.S., in the context of Judiciary power and branch, Amicus Curiae has the following meaning: People, groups, or officials who are not official parties in a case may still have a keen interest in the outcome of the case and may wish to communicate their opinions to the court. Sometimes, courts allow amici curiae (plural form of a Latin phrase meaning “friend of the court”) to file briefs on a pending case. (Source of this definition of Amicus Curiae : University of Texas)

Amicus Curiae

Meaning of Amicus Curiae

In plain or simple terms, Amicus Curiae means: A friend of the court; a nonparty volunteers information.

Resources

See Also

  • Judiciary Power
  • Judiciary Branch

Meaning of Amicus Curiae

In plain or simple terms, Amicus Curiae means: A friend of the court; a nonparty volunteers information.

Resources

Notes and References

  1. Definition of Amicus Curiae from the American Law Dictionary, 1991, California
  2. Id.

See Also

amicus curiae in relation to Invention and Patent Law

A brief filed before a court by a party that is not a party to the lawsuit usually to speak to the desirably of legal precedents that may be made in the decision or the public interest.

Amicus curiae in the Context of Law Research

The Thurgood Marshall School of Law Library defined briefly Amicus curiae as: (Latin “friend of the court) a party with strong interest in or views on the subject matter of the dispute will petition the court for permission to file a brief, ostensibly on behalf of a party but actually to suggest a rationale consistent with its own views.Legal research resources, including Amicus curiae, helpto identify the law that governs an activity and to find materials that explain that law.

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