Discover more from NOT BILLABLE
👯 Why can’t we be friends? Amicus briefs get a cold shoulder in SCOTUS
Amicus curiae, aka friend of the court briefs, provide an argument for why a side should prevail in a case. But at the Supreme Court level, where amicus briefs flow freely, it’s getting harder than ever to tell who these “friends” are.
Amicus briefs are on the rise: During the Court’s 2019-20 session, 911 were filed for an average of 16 per case. That amount was almost double the per case average from 2010-11.
There’s also an identity problem: Anyone that sends a brief is supposed to disclose ties with the parties involved in the case. But the problem is many briefs come from vague organizations who don’t reveal their sources.
It’s possible the parties involved in the litigation may be the amicus financers: Oracle has said that it provided funding to six different groups who filed amicus briefs in its recent case vs. Google.
Lawmakers want SCOTUS to fix this
They are pushing the Court to strengthen its own disclosure rules to essentially force amicus filers to disclose who is funding them. If not, the legislature could push for change on its own.
Whatever happens, don’t doubt the value of an amicus brief. As Massachusetts-Amherst law professor Paul Collins told the WSJ, “The justices routinely cite amicus briefs. They incorporate the arguments from the briefs into their opinions.”