Amicus Curiae: The US Supreme Court's Influential Friend
| Published date | 01 April 2013 |
| Author | Mark Rathbone |
| DOI | 10.1111/2041-9066.12010 |
| Date | 01 April 2013 |
| Subject Matter | Feature |
trade association representing many such
companies.
Arizona v. United States
An amicus brief also offers an opportunity
to put forward supplementary arguments,
which a party to the case may not be able to
include in their own brief without exceed-
ing word limits. Evidence such as decisions
from other countries or articles in scholarly
journals are not binding on the court, but
may have some influence. Amicus briefs
come from a wide variety of sources –
individuals, pressure groups, companies,
states, even the federal Government. Thus,
for example, in the landmark 1954 case on
Amicus Curiae:
TheUS Supreme Court’s Inuential Friend
The literal translation of amicus curiae
is ‘friend of the court’. In many ways
that is what amicus curiae are – an
individual, or a group of individuals, who
are not directly involved in a court case,
but who have an interest in it and believe
that their views may assist the court in
determining the outcome. Although the
concept dates back to Roman law and has
been known in English law since the 9th
century, its best-known application is in the
US Supreme Court. An amicus curiae may
give oral evidence to the court in person or,
more frequently in recent decades, submit a
written brief. As Rule 37 of the Rules of the
Supreme Court [2010] states, ‘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.’
Whilst the term sounds all very cosy and
helpful, it is in fact part of the sometimes
ruthless and often highly political lobbying
process that surrounds the US Supreme
Court. An amicus curiae brief may be sub-
mitted before the plaintiff applies to the
Court for their case to be considered (known
as a Petition for Writ of Certiorari). The Su-
preme Court only agrees to hear about 1.5
per cent of the cases that it is asked to, so
an amicus brief in support of a petition may
help to persuade the Court to hear the case.
Once the Supreme Court has agreed to
hear the case, an amicus brief can help to
influence the outcome in several ways. It
may draw the attention of the justices to
the wider implications of their decision in
a way that carries more credibility than it
would do in evidence given by a party to
the case. So, for example, a claim that thou-
sands of companies across America would
be adversely affected by a decision could be
dismissed as exaggerated or self-serving if
made by a party to the case, but might carry
greater weight if it came from a respected
Over the past 25 years the US Supreme Court has seen a marked increase in submissions from individuals
and groups not directly involved in a court case. These so-called ‘amicus curiae’ briefs are having a profound
influence on the Supreme Court’s decisions. Mark Rathbone investigates.
school segregation, Brown v. Board of Edu-
cation, the US Government submitted an
amicus brief arguing that the continuation
of racial segregation made it harder for the
government ‘to prove to the people of the
world, of every nationality, race and color,
that a free democracy is the most civilized
and secure form of government.’
Furthermore, the support of a reputa-
ble organisation may help the cause of a
party to a case who does not himself carry
much credibility. Take Gideon v. Wainwright,
a 1963 case about the failure of the state
authorities to provide a defence lawyer,
and Miranda v. Arizona, a 1966 case about
the duty of the police to inform a criminal
suspect of his legal rights. The plaintiffs,
Clarence Gideon and Ernesto Miranda,
Over half the states in the union submitted amicus briefs in a Supreme Court case on the legality
of Arizona’s controversial anti-immigration law
Corbis
32
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