Insights & News

What Are Friends For?
By Mark E. Chopko

July 30, 2020

Amicus Curiae - a friend of the Court - is an ancient concept that traces its origins to Imperial Rome. It was incorporated into the common law nearly a thousand years ago and found its way into American law. It gives a person or entity a way to appear in a case to which it is not a party and offer the court advice about the proper resolution of an issue - and in the process advances the party’s own interests. It is a way to inform a court about legal cases or developments that are beyond the record that might be helpful but are otherwise unknown. For example, in 1686, Sir George Treby, a member of Parliament, filed an amicus brief to the King’s Bench to explain the intent of the legislation under scrutiny. That practice was a help, and hence the name amicus curiae. Over time, the practice evolved into advocacy. Courts stopped pretending that its new “friends” were neutrals and required amici to declare their associations with the litigant supported.

Lawyers are familiar with the successful advocacy of Louis Brandeis, whose Supreme Court brief relied on sociological data to advance the cause of workers who were parties to Muller v. Oregon. Amicus curiae practice got a significant boost when the Supreme Court relied on the amicus briefing of Thurgood Marshall on behalf of the NAACP to dismantle legal segregation, ultimately leading to the decision in Brown v. Board of Education. The continuation and expansion of the involvement of amici curiae in the Supreme Court are in recognition of the Court’s significant law-making function in the U.S. governmental system. The Court now publishes a guide for amici parties, which addresses both form and expectations. (See Today, those seeking to appear in cases as amici curiae need the consent of the parties or, failing that, the permission of the Court. Many state courts still require the permission of the court to file.

Use of amicus briefs has ballooned over the last few decades. Prominent Supreme Court matters often attract dozens of such briefs on both sides of the merits. The Supreme Court Rule (37.1), however, adds caution for all contemplating that participation: “An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.”

Keeping that caveat in mind, this article highlights the reasons why an organization can and should consider filing amicus briefs as part of its overall legal strategy.

  1. To urge the right answer - One of the principal benefits of an amicus filing is the opportunity to guide a court through the record and the law to reach what the filing party thinks is the correct answer, especially if the arguments and legal theories are not included in the parties’ briefing. In a Supreme Court that sets a precedent (as opposed to following it), the court is often guided by well-reasoned views of amicus participants offering arguments complementing what the parties advance.
  2. To highlight a case’s importance - Thousands of cases are filed every year in the U.S. Supreme Court seeking one of the coveted 70 or 80 slots for cases that will be argued and decided over the Court’s Term. Some arrive with significant media attention and built-in importance. But many do not. An easy way to call attention to the importance of a case that might otherwise be overlooked is to have amicus support when the petition for certiorari is filed. Statistically, the Court grants review more often when there is amicus support. One can debate whether the support itself gives the case greater merit or simply is a way of flagging the petition for a second look. Either way, amicus support is a significant boost to the likelihood of the Court’s review.
  3. To advance an issue in the context or background of the case - Often an amicus participant can call a court's attention to issues outside the parties’ arguments that help add color or context to the dispute. For instance, in cases involving the constitutionality of the death penalty for mentally infirm persons and juveniles, the religious community filed united amicus briefs to address the moral application of the Court’s Eighth Amendment standard - whether punishment can be squared with “the evolving standards of decency that mark the progress of a maturing society.” That was not an issue the parties could advance, but one the religious community was uniquely positioned to answer.
  4. To advance the amici’s own cause or case - Absent extraordinary circumstances, a Supreme Court often does not take a case involving a legal issue the first time that it arrives for review. Thus, an amicus party can call the court's attention to other cases that are on their way forward for possible Supreme Court review. And it educates the Court that the amicus participant’s dispute will be worthy of review someday. So why not now?

The strategic use of amicus briefs by organizations can help an appellate court think about a case in a new way, lift an organization's own cause or dispute, or point the court in a new direction. Briefs that embrace these themes satisfy the substance of the Court’s rule that an amicus participant should advance “relevant matter not already brought to its attention by the parties” rather than simply replicate a party's argument. When that happens, even the courts will concede it is good to have such a friend.

About the Author
Mark has participated as amicus counsel in more than 40 U.S. Supreme Court cases. He also chairs Stradley Ronon’s nonprofit & religious organizations practice group, which brings together 25 lawyers from across the firm’s many legal disciplines to serve the unique needs of those clients. He joined the firm in 2007, after serving for more than 20 years as general counsel for the U.S. Conference of Catholic Bishops (USCCB) and nearly eight years as a regulatory attorney in Washington, D.C. He has extensive experience in untangling the liabilities of complex organizations, in both planning and organizing activities and in litigation. Mark has represented clients across the country, and from Europe to the Pacific Rim. A major emphasis of his practice is constitutional law and deflecting attempts by government to regulate the activities of religious institutions.

Information contained in this publication should not be construed as legal advice or opinion or as a substitute for the advice of counsel. The articles by these authors may have first appeared in other publications. The content provided is for educational and informational purposes for the use of clients and others who may be interested in the subject matter. We recommend that readers seek specific advice from counsel about particular matters of interest.

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