In the wake of many significant and historical decisions being released by the United States Supreme Court, I began to research the Court’s history, specifically it’s decision making procedures. The Court’s familiar appeal procedures have remained essentially the same for the last 100 years. We see the same brief format for the parties, oral arguments in front of a nine-member court, etc. However, this last century has seen a huge shift in the number and impact of amicus curiae, or friend-of-the-court, briefs (i.e., briefs that are filed by individuals or groups which are not a party to the case). Amicus briefs were rarely filed during the 1800s, and even in the early 1900s these briefs were filed in only about 10% of the U.S. Supreme Court’s cases. Yet, since 1955 the Supreme Court has received an increasing amount of assistance in its decision making process from their “friends-of-the-court.” Now at least one amicus brief is filed on about 90% of the U.S. Supreme Court cases. Additionally, the sheer number of amicus briefs filed has increased dramatically. From 1946-1955 there were 531 briefs filed, while 1986-1995 saw 4907 briefs filed – an 800% increase. This proliferation is true among individual cases, with over 100 briefs filed in the 2003 Gratz v. Bollinger Michigan affirmative action case; even obscure cases can see upwards of 30 and 40 briefs filed. With the Supreme Court handling so many cases each term, and numerous non-party briefs filed each term, what influence can these briefs have on the Court’s decision making process?
The Impact of the Amicus Brief
Mapp v. Ohio (1961) is one of the most famous search and seizure cases the Supreme Court has ever decided, yet many do not realize that its significance extends beyond the realm of criminal justice rights. Mapp v. Ohio was one of the very rare decisions in which the U.S. Supreme Court adopted a position not advanced by either party to the case; rather it was a position argued solely by an amicus curiae – the ACLU. But, does such an example indicate that the Court is regularly influenced by their friends-of-the-court? What about the fact that the Court frequently requests the Solicitor General to file an amicus brief on difficult cases before the Court? Can this attest to the value the justices place in these briefs? Well, beyond these examples, the basic numbers seem to signify that Justices find amicus briefs useful. In fact, in recent terms, studies indicate that the Justices are increasingly influenced and reliant on amicus briefs. That is, from an objective standpoint recent terms have seen the Justices cite amicus briefs more often in their opinions.
From 1986-1995, only 37% of the Court’s decisions made reference to an amicus brief. Conversely, 60-70% of the Court’s decisions in the last five years have cited amicus briefs, and the Solicitor General’s briefs were cited a noteworthy 80% of the time (doubling from the traditional 40% the Solicitor General was traditionally cited). The Solicitor General is also one of the rare amicus curiae who is able to obtain the Court’s permission to argue orally before the justices. Even if parties to a case are willing to cede some of their precious oral argument time, private amici are usually never given the luxury of oral arguments. Therefore, the written brief is the most common method of voicing your argument with the Court – making high-quality amicus briefs necessary to have any chance of influencing the outcome.
What makes an amicus brief influential?
According to the former clerks to many of the justices, the amicus briefs are handled in different way by the various justices. Some justices take and read every brief; some ask the clerks to pick the most significant briefs; others ask the clerks to circle the important passages of the amicus briefs; and still there are some justices who require the clerks to summarize the valuable points and analysis either in a memorandum or an oral report.
The clerks themselves read every brief submitted, and when making a determination on which briefs or arguments should be presented to the justices, the clerks have stated that they look for data and perspectives that can assist the justices when making difficult decisions in complex cases – briefs that bring something new to the table, such as a discussion of how the outcome in this case may impact other pending cases, or a more lucid and considerate discussion of industry practices. In other words, they look for briefs and arguments which provide more than a mere reiteration of the parties positions, something that says more than just “me too.”
Additionally, both the justices and clerks agree that certain individuals and groups with a reputation of submitting valuable and objective amicus briefs are given more favor than others, e.g., the Solicitor General or the ACLU. The important takeaway being that any time you present a brief to the Supreme Court (or any court for that matter), make sure it is a high-quality brief that is both well-written and helpful, as it will have a lasting impact on the reception future briefs receive.
Since the first amicus curiae appeared in 1821 in Green v. Biddle, “friends-of-the-court” have sought to participate in the justice system, hoping to persuade the Court and influence the law. The justices should be commended for its continued allowance of essentially unlimited amicus curiae contribution, considering the increased burden this places on the Court’s already intense workload. Perhaps the Court believes that creating a limitation would only create more work by requiring the clerks and staff to review and determine which briefs should be admitted and considered by the justices? Some may argue that it is because a limitation on amicus briefs would send the wrong message to the nation. Yet, the recent opinions released by the Court during the past several terms suggest that the justices appreciate their “friends-of-the-court,” and that they have found their friends’ briefs to be both informative and helpful.
At Brus Chambers LLC, we have a team of attorneys with the knowledge and experience to represent your interests with the court, whether it is the court of appeals or supreme court. If a decision by a court will impact your interests, do not hesitate to contact me and the attorneys at Brus Chambers LLC.