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A, Amicus Brief.

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 23 November 2020

Amicus Brief.

An amicus curiae (“friend of the court”) *brief is filed by someone not a party to the case but interested in the legal doctrine to be developed there because of the relevance of that doctrine for their own preferred policy or later litigation. Amicus curiae almost invariably align themselves with one of the parties, making them primarily friends of the parties despite the “friend of the court” label. Amicus briefs are potentially important because they can bring to the court’s attention legal arguments and perspectives different from the parties’ views. Such briefs may, for example, help the justices see the effects of potential rulings. An amicus curiae is usually an organization, although it may be an individual.

Few amicus briefs are filed in the federal district courts or in the U.S. *courts of appeals (see lower federal courts). In the Supreme Court, where most are filed, some are submitted in connection with petitions for *certiorari. The presence of many interested organizations may alert the Court to a case’s importance, making the grant of review more likely. Most amicus briefs, however, are filed after the Court has accepted a case for review. In the Supreme Court, amicus briefs can be filed by private parties only with permission. If either party refuses permission, the Court itself may grant it. Under the Court’s rules, neither the United States government, through the *solicitor general, nor state governments need obtain such permission. At times the Court invites an organization or agency—most often the solicitor general—to submit their views in a case. When a party has abandoned support for a position it argued in the lower courts, the Supreme Court may appoint an amicus to argue that position. It did this in Bob Jones University v. United States (1983), appointing William Coleman to argue that racially discriminatory private schools should not receive tax exemptions, after the Reagan administration had abandoned that argument.

Organizations seek to file amicus briefs for several reasons. The most obvious is to attempt to influence the Court’s rulings. However, some amicus submissions are to “show the flag,” with a group’s leaders wishing to show the membership that the organization is active. An organization lacking financial resources or legal staff to provide support for litigation starting at the trial stage finds an amicus brief a far less expensive way of participating in a case. However, some conservative public-interest law firms, even when they could afford greater trial-level participation, have tended to participate through amicus briefs, using them to attempt to offset liberal organizations’ amicus views.

The Supreme Court’s receptivity to amicus briefs has varied over time, although the Court now seems to welcome them. In controversial cases, like *Webster v. Reproductive Health Services (1989), there have been more than sixty amicus briefs. The extent to which amicus briefs make a difference in the Court’s decisions is not known. At times they do appear to have had an effect. For example, in *Terry v. Ohio (1968), the amicus brief of Americans for Effective Law Enforcement may have convinced the Supreme Court to appreciate the danger to police that could be avoided by *stop-and-frisk measures. In *Mapp v. Ohio (1961), the argument in an *American Civil Liberties Union amicus brief that improperly seized evidence should be excluded from criminal trials provided a basis for the Court’s extension of the *exclusionary rule in state cases. Some skeptics, however, say that justices pay little heed to amicus briefs, perhaps not even reading them. A more serious problem is that the briefs are generally not subject to the give-and-take of the adversary system because they are filed in the Supreme Court on a common date and thus do not respond to each other. The assertions they contain are also not tested through dispute between lawyers, since an organization filing an amicus brief is seldom allowed to participate in *oral argument.

Stephen L. Wasby