Frenemies of the Court: The Many Faces of Amicus Curiae

Amicus curiae, or “friend of the court,” participation has surged in recent years, primarily by interest and advocacy groups wishing to advance their law reform efforts and to gain publicity. In addition, government agencies, officials, law professors, law clinics, individual lawyers, and even high school students have all added their arguments to those of the litigating parties. Amicus briefs are meant to provide additional information or perspectives to assist courts in deciding issues of public importance.

Yet, amici curiae—nonparties who are nevertheless advocates, who are not bound by rules of standing and justiciability, or even rules of evidence, and who can present the court with new information and arguments—occupy a unique place in the appellate courts. Amicus briefs have the potential to exert significant influence on a decision, but is that always a good thing?

The United States Supreme Court has led the surge in amicus briefs with its policy of allowing unlimited amicus participation. Other courts, however, may not be able to entertain as many amici. For example, more than half of state high courts are sensitive to democratic pressures through the election of judges. As a result, lobbying of state courts through amicus briefs may politicize state court proceedings in a way that is different than in federal courts with lifetime appointments.

If amicus curiae participation continues to grow in lower federal and state courts, these tribunals should clarify the role of amicus. A clearer sense of the different types of amicus curiae, and their different contributions or potential for abuse, will help courts address problems that may arise.

The Growth of Amicus Briefs

In recent decades, amicus curiae participation in the Supreme Court has escalated, even as the Court has tightened the standing requirements for the parties themselves. In 2013, the highly publicized Supreme Court case of United States v. Windsor attracted 134 appellate court briefs, according to Westlaw. During the same term, Shelby County v. Holder attracted 63 total appellate court briefs, almost all of which were amicus briefs and the Affordable Care Act case, NFIB v. Sebelius, attracted over 140 amicus briefs. The federal courts of appeals have not experienced the same rate of increase.

Amicus curiae participation in state courts has grown, albeit unevenly. California, for example, has a high amicus participation rate, while Arkansas and Idaho have much less amicus participation.

The Types of Amicus Curiae

The types of organizations and individuals who will participate as amici curiae also vary, ranging from activist or public advocacy groups, nonprofits, corporations, business alliances, and political organizations, to individuals (including law professors) concerned about the issue or the outcome of the case. The federal or state attorney general or solicitor general may file amicus briefs without advance permission, even where leave of the court is otherwise required. Other governmental actors or bodies may also file amicus briefs.

Regardless of the amicus’ identity, amicus participation can be divided into 5 major types:

The Court’s Lawyer

The Court’s Lawyer is the court’s hand-picked lawyer who is asked to represent a particular position. The Supreme Court of the United States uses these appointed amici curiae to argue positions abandoned (or never advocated) by a party. This type of amicus curiae is really an advocate retained for the court.

The Court’s Lawyer seems problematic in that the court appears to be stepping out of its neutral arbiter role and promoting advocacy of particular positions. On the other hand, these appointments can be seen as an effort by the court to fully air arguments it is considering but which the parties are not making. In a recent example, the Court appointed lawyers to argue two particular positions not argued by the parties in the Affordable Care Act case, NFIB v. Sebelius.

The Invited Friend

The Invited Friend is the individual, group, or institutional actor asked to provide its perspective. For example, the court might ask a government agency, or another branch of the court system, to weigh in on issues of public import or issues that may affect that institution. Unlike the Court’s Lawyer, the Invited Friend is not assigned a particular position or argument.

Friend of a Party

The Friend of a Party usually coordinates with a party and may be solicited by a party. Some of these friends are actually “puppets” of the party: the party may have created or funded the amicus curiae organization, or the party’s lawyer may have actually authored the brief. Not all states even require disclosure of such a connection and few forbid it outright.

But even where there is no direct financial connection, party kinship may be clear, such as industry groups appearing on behalf of an industry party or unions supporting the position of an employee.

It is the Friend of a Party category of amicus curiae whose participation has grown the most over the last century, especially in recent decades. Often it is an interest or advocacy group, participating because the issue is important to its membership. These amici curiae may also hope that amicus participation will help them gain visibility.

Friend of a Party briefs can also be a part of a coordinated law reform effort. For example, the United States Chamber of Commerce has enjoyed success with its efforts in the Supreme Court and is now increasingly filing amicus briefs in state courts.

Independent Friend

The Independent Friend amicus curiae is an organization or individual who does not support either party. They may participate for the same reasons that groups decide to weigh in as Friends of a Party: because the issue is important to them and/or their membership. The Independent Friend seems to be relatively rare, however. Most amici choose sides.

Near Intervenors

Near Intervenors are people or groups likely to be affected by a case but whose interest is not sufficient for intervention. Not all courts allow amicus curiae with this type of interest, on the grounds that an amicus curiae should be an impartial advisor to the judiciary. But other courts will use this amicus curiae category as a remedy for those who cannot make a showing for intervention. For example, the Supreme Court of New Jersey noted that a crime victim, even if lacking standing in the defendant’s appeal, could participate as an amicus curiae.

The Near Intervenor should be distinguished from the amicus curiae who is interested in the outcome because it has a similar case pending, one that could be controlled by precedent set in the instant case. The Near Intervenor has an interest in the particular dispute at issue, not just its likely precedential value.

How Amicus Briefs Are Different

Amici curiae, of whatever type, have great flexibility in the arguments and factual material they present to the court. Given how strictly courts apply the rules of evidence, waiver, and standing to the parties, the freedom accorded amici curiae is striking.

Although the parties are limited in their factual arguments to what is in the appellate court record and permitted by the rules of evidence below, amici curiae routinely present “legislative facts” in support of policy arguments. They can also present what amounts to testimony by individuals who were not involved in the case. This type of “new information” is frequently cited as the benefit of amici curiae; it is precisely this information—not put forward by the parties—that is said to be of assistance to the court. Yet there is an argument that the presentation of new facts in amicus briefs undercuts the adversarial process and encourages appellate courts to find facts outside the record.

Amici curiae have a similar freedom with their arguments and thus may raise arguments that the parties would be foreclosed from making. The Supreme Court of the United States has considered new issues raised first by an amicus curiae. (Two prominent examples are in Mapp v. Ohio and Teague v. Lane). Most other courts distinguish between entirely new issues—which an amicus curiae may not present—and theories in support of issues raised by the parties, which the amicus may argue.

Finally, as nonparties with less at stake than the parties to the dispute, amici curiae enjoy a certain freedom to innovate in brief-writing. It was amicus curiae that filed the first Brandeis brief, the first electronic brief in the Supreme Court and the first graphic (comic book) brief in federal court. No attorney representing a party to the litigation would take the chance of filing a “comic book” brief on the merits.

The Limits of Friendship: Towards a Better Understanding of the Role of Amicus

There is something curious about the way amici curiae are allowed to wander into court at will and potentially take control of cases at the expense of litigants who will actually be bound by the court’s decision. Yet neither courts nor litigants seem particularly concerned about the amicus curiae role, even as it has expanded. There is the occasional exasperated judicial complaint about useless, duplicative, amicus briefs. Nevertheless, by and large, judges seem to appreciate the option to consider amicus briefs.

Still, a recurring complaint about amicus curiae is that they may be merely paid helpers of a litigant. The credibility of all amicus curiae could be helped if all courts adopted at least the disclosure requirements of the federal courts. Courts worried about abuse by the “puppets of a party” could go as far as Arizona and forbid ghost-writing or funding of amicus briefs. More importantly, if amicus curiae practice continues to grow in courts other than the Supreme Court of the United States, courts and litigants should prepare for the challenges this expansion will present. With some clarity about the types and purposes of amicus curiae, courts might be in a better position to establish limits that could improve amicus participation and the resolution of disputes.

To clarify the role of amicus curiae, and especially the role of a Friend of a Party, courts need to address the myth of disinterest that is tied to the term “friend of the court.” The idea that amicus curiae should be impartial, despite a general recognition that most amici curiae are supporting a party, persists. Second, to understand what legitimate interests amici curiae may have, courts need to clarify their own role: is a court decision more like a legislative decision so that courts should gather as many opinions, policy arguments, and factual inputs as possible? Or should they limit this kind of input, as democratic as it might be, out of deference to the parties who will be bound by the decision?

Amicus Curiae and the Court's Role

Despite the popular conception of judges as “umpires,” we know that courts must often make law.

But that does not mean courts should operate just as legislatures do. Courts still deal with the law one dispute at a time, with litigants who are bound by the decision, who shape the course of litigation by their tactical and strategic decisions, and who bear the costs of litigation. It is one thing to say that a court—especially a high court—should consider the impact of its decision in future cases. It is quite another to allow the litigants’ voices to be almost drowned out by those of amici curiae.

Some argue amicus briefs are necessary for democratic input into courts. But if it is the democratic input we value, why require briefs at all? Why not allow petitions and letters? Most courts would reject that idea, sensing that such a policy would undermine respect for the court’s legal reasoning function. Requiring a brief with legal argument performs some gatekeeping and emphasizes the importance of the law in the court’s decisions. And yet, imposing no limit on the number and content of amicus curiae briefs can perhaps also undermine respect for the court’s role or at least confuse the public about what courts actually do. If anyone can file a “me-too” brief, it gives the impression that anyone’s opinion should matter to the court.

Such an impression might be particularly troublesome with respect to elected judges in state courts. In recent decades, contested judicial elections have become more common, bringing increased fundraising anxiety for candidates. State judges endeavor to balance their democratic obligations to the electorate with their judicial role as neutral arbiters of the law. Increased political pressure in particular cases in the form of amicus briefs could upset that balance if there are no restraints whatsoever.

Of course, one might also argue that elected judges in particular should be sensitive to constituents’ views, and therefore greater amicus curiae participation should be allowed. Restricting amicus briefs is a tricky matter in elected courts. But these courts would be warranted in putting some limits, especially on duplicative or “puppet of a party” briefs, in order to emphasize the difference between judicial decision-making and legislative negotiation.

Reasonable Restrictions on Amicus

Should courts wish to exercise their gate-keeping powers, there are some simple steps they could take, especially for Friend of a Party amici, the area of greatest growth.

In addition to requiring amicus curiae to disclose financial support and/or ghostwriting by a party, as many courts already do, courts concerned about amici curiae participation could return to the common law special interest or expertise requirement. Some state court decisions and court rules articulate these common law criteria.

These rules identify the Near Intervenor as a legitimate amicus curiae applicant and also permit amici curiae who truly have something helpful to contribute, especially where the party representation is inadequate or where amicus stands to be indirectly affected by the judgment. These rules do not insist on impartiality, nor do they suggest that a desire to weigh in is enough. Courts concerned about an overload of amicus curiae could return to these criteria as a way to evaluate amicus curiae petitions.

Not all courts have the resources of the Supreme Court of the United States. Not all litigants will enjoy the expert volunteer assistance that litigants before the Supreme Court can obtain to deal with a multitude of amicus briefs. If amicus curiae begin to file in federal or state appellate courts at the rate they now do in the Supreme Court, these courts should consider limiting amicus curiae out of consideration for litigants and the courts, as well as respect for the judicial process.

Encouraged by the Supreme Court, courts have established a norm of hospitality for amicus curiae, even as rules of joinder, intervention, party status, and standing have grown more constraining on others who wish to participate in appellate cases.

Judicial indifference to amicus growth may result in part from the very flexibility of the amicus curiae category. Not only is the term flexible enough to cover a range of friends, but the courts have great flexibility in dealing with the briefs. Judges are free to use, rely on, quote, discard, or ignore the presentations of amicus curiae.

But although judges may believe they can sort through an increase in amicus curiae filings, their sense of control may be illusory. Courts should take a closer look at the different roles of amici curiae and consider whether it is time to put some restrictions on their friendship.

This is a condensation of an article that was published in the University of Richmond Law Review. A complete version is here.