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10 Litig. 21 (1983-1984)
Amicus Briefs in the Supreme Court

handle is hein.journals/laba10 and id is 157 raw text is: Amicus Briefs in the Supreme Court by Stephen M. Shapiro Despite the heavy caseload of the Supreme Court, I have lit- tle doubt that the Court welcomes amicus curiae briefs of high quality. Amicus briefs provide data and perspective to the Justices that assist them in deciding complex cases. Justice Black observed that [miost cases before this Court involve matters that affect far more people than the immediate record parties (346 U.S. 947). Wise disposition of cases like these frequently requires information beyond the grasp of the litigants. The paradox has been that only certain types of associations appear very often as friends of the court. Business groups, for example, file fewer amicus briefs than the issues warrant. The Supreme Court's frequent requests to the Solicitor General to file an amicus brief attest to their importance. In fact, even without a request, the Solicitor General files about 50 amicus briefs each Term. The opinions of the Court often refer to them. The government is by no means alone in filing amicus briefs. For decades, public interest groups, usually of a liberal political outlook, have made their views known to the Court through amicus briefs. Today, organizations such as the American Civil Liberties Union, the NAACP Legal Defense & Education Fund, and the AFL-CIO advocate their posi- tions in nearly every Supreme Court case that impinges on their goals. To a lesser extent, conservative public interest groups, such as the Mountain States Legal Foundation, also file amicus briefs in Supreme Court cases. In the 1981 Term, 231 amicus curiae briefs were filed in the Supreme Court by parties other than governmental litigants. O'Connor & Epstein, Court Rules and Workload: A Case Study ofRules Governing Amicus Curiae Participa- tion, 8 JusT. SYS. J. 35, 40-41 (1983). The numbers were roughly the same over the prior five Terms. Amicus curiae briefs are now filed in two-thirds of the civil cases argued before the Supreme Court each year, and multiple filings are common. O'Connor & Epstein, Amicus Curiae Participa- tion in U.S. Supreme Court Litigation: An Appraisal of Hackman's Folklore, 16 LAW & Socv REVIEW 311, 317 (1982). Stephen M. Shapiro has served as Deputy Solicitor General of the United States. He is a partner at Mayer, Brown & Platt in Chicago. Amicus curiae briefs were cited or referred to in 18 percent of the opinions rendered by the Court or by individual Justices over the last decade. In the 1975 Term, 31 percent of the cases decided by the Court referred to amicus curiae briefs. To obtain additional information about the Supreme Court's use of amicus curiae briefs, I have spoken with former law clerks from the chambers of most of the Justices. The picture that emerges is as follows. The Justices handle amicus curiae briefs on the merits of cases in different ways. Some of them take all the briefs, including the amicus briefs, and study them before argument. Some Justices ask the clerks to pick out the most significant amicus briefs. Other Justices ask the clerks to circle passages in amicus briefs of the greatest importance to the analysis of the issues. Still others require the clerks to summarize important points made in amicus briefs either orally or in a bench memorandum. The clerks themselves reported that they examined each amicus curiae brief that was filed. The clerks agreed that a good amicus brief gets attention. In fact, if the parties prepare poor briefs, the amicus brief can virtually replace the briefs filed by the parties. Even in cases where the parties file effective briefs, amicus briefs nonetheless can influence the Court because they provide additional information. Briefs that Fail On the other hand, the clerks agreed that many amicus curiae briefs are a waste of time and money. The Court is flooded each Term with short amicus curiae briefs that say little more than me too - the amicus agrees with one side in the controversy. Other amicus briefs repeat the analysis of one of the parties with slightly varied phraseology. Still other amicus groups file documents so one-sided that they fail to meet the countervailing arguments, and thus they fail to assist the Court in comparing and evaluating competing claims. In addition, some amicus briefs insist on discussing issues that are far removed from the issues before the Court, and thus they contribute nothing to the analysis of the case. Finally, some amicus groups plague the Court with filings that are little more than political or economic editorials, and thus they fail to acknowledge and analyze the relevant .statutory or constitutional principles, or even the decisions 21

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