On the Amicus Curiae

I recently read an article in the New York Times in which Adam Liptak writes about the Supreme Court’s usage of the amicus curiae, which is legal commentary submitted by a third party that gives some sort of information and judgment about the case, ultimately favoring one side over the other.

The concept seems like a good one. Lawyers can’t be experts on every potential topic, science and otherwise, nor can lawyers consult every expert on a given topic. Amici curiae (plural) therefore are necessary submissions from experts in relevant fields that may provide critical insight into the field in which the Court is ruling. They may inform the Court of the facts of case-equivalent situations elsewhere as well as the potential effect certain laws may have on people, places, industries, etc. Without these submissions, the Court might as well be shooting in the dark with a gun that doesn’t know up from down. How is John Roberts or Ruth Bader Ginsburg supposed to know the conclusions of studies that identify the effect of certain patent laws on certain sectors of the economy or the amount of privacy violations that happen in some government agencies?There are two main problems with the amicus curiae:1. The Supreme Court is designed to hear appeals (legal protests of lower courts’ decisions), that is, they have appellate jurisdiction. Appellate jurisdiction, thus, necessarily excludes the hearing of new facts because that would not match the case heard in the lower trial court, which have original jurisdiction. Amicus briefs definitely provide new facts, that’s their purpose, mostly in cases the Supreme Court is hearing under their appellate jurisdiction.

As an aside, the Supreme Court does in fact have original jurisdiction in a small amount of cases, but the amicus brief is not frequently used for these cases. And even in these cases, there should be some check of the validity of these briefs, which I will now discuss:

2. The main message from the New York Times: often times, these briefs are not fact-checked, peer-reviewed, or have any other relevant qualification. And while one major benefit to amicus briefs is that they democratize the judicial process by magnifying the public voice in judicial matters, the reason why the judicial branch is so separated from the public is precisely for this reason: being a Supreme Court justice requires not being of the “average crop” of people in the same way that we elect representatives – for such important and complex legal matters, we must rely solely on the best legal minds, not Jane Smith and John Doe from the ACLU citing a blog post written by an anonymous author (please don’t get me wrong, I do not believe U.S. Representatives are the “cream of the crop” to continue the agricultural metaphor).

And, as an additional argument, most of the problem isn’t the democratization of the process but rather the presence of non-factual assertions that derail any hope of creating meaningful, effective change in our laws. In fact, Liptak reports that many of the studies sent to the Supreme Court were designed specifically for influencing the Court. In my limited experimental experience, beginning with a conclusion to be obtained is not reliable for coming to an objective conclusion.

What gets me in particular is certain justices’ hypocrisy regarding the way justices should treat amicus briefs. Liptak quotes Justices Alito Jr. and Scalia and identifies an opposition to amicus briefs shared by both justices. The only problem is that Alito Jr. and Scalia both have cited amicus briefs when convenient.

To resolve the problem of the amicus brief is a tall order given their preeminence in the legal scene today. But hope is not lost. If justices are to continue to use the amicus brief, which isn’t a bad idea, they must be sure to employ their clerks to conduct their own research on the nature of those briefs and come to a conclusion about whether the brief’s studies and sources are reliable enough for the Supreme Court. Certainly these Harvard and Yale Law graduates can discern between research that would qualify for being used in a high school essay and research that would not.

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