The Myth of the Neutral Amicus: American Courts and Their Friends, 1790-1890
Banner, Stuart, Constitutional Commentary
An amicus curiae ("friend of the court") is, in modern American practice, a non-party to a case who nevertheless has a strong enough interest in the case's outcome to file a brief. Common amici include the federal and state governments, ideological organizations like American Civil Liberties Union or the Washington Legal Foundation, commercial groups like the Chamber of Commerce or the AFL-CIO--in short, anyone with a stake in influencing the content of judge-made law. The name amicus curiae is generally acknowledged as something of a misnomer, in that very few amici intend primarily to help the court. Virtually every amicus hopes instead to advance its own interest by helping one party or the other win the case. This mismatch between name and function is embodied, for example, in court rules that typically require amici to identify the party to the case on whose behalf they wish to argue.
The misnomer is conventionally understood to be a vestige of a time when amici actually did render disinterested advice, for the purpose of helping the court rather than one of the parties. The original role of an amicus, on this view, was that of a neutral bystander, someone without a stake in the outcome of a case, who offered information to the court gratuitously, just to help the court avoid error. The function of an amicus has changed, the story goes, but the name has not. This understanding of the amicus's history traces back to a 1963 Yale Law Journal article by the political scientist Samuel Krislov, who located the supposed "shift from neutrality to advocacy" in the nineteenth century. Krislov's conclusion has been repeated many times since. (1)
In recent years, many courts have even relied on this supposed history to refuse to permit interested non-parties to file amicus briefs, on the theory that only the disinterested are eligible to become amici. As one federal district judge reasoned in 1999, it would be improper to allow a non-party to participate as an amicus where the non-party "has a specific pecuniary interest in the defendant's perspective," or where the non-party "makes no attempt to present itself as a neutral party." (2)
To put the history of the amicus this way, however, only raises further questions, questions that to my knowledge have not been raised previously. Who exactly were these neutral amici in the early nineteenth-century United States? Why were they offering disinterested help to judges? Was there really a time when gratuitous public-spirited legal advice was more plentiful than it is today?
We might approach these questions with some skepticism about the conventional story of a transformation from neutral to partisan amici, because the story fits so perfectly into a common but unrealistically nostalgic version of the history of American legal practice. (3) If one believes that the law was once a noble profession, staffed by officers of the court rather than mere advocates, and if one thinks of American lawyers as having gradually degenerated into paid mouthpieces for their clients, then one can readily believe that the institution of the amicus curiae has undergone the same decline. But if one considers the American lawyers of today no more or less venal than ever, the assumed change in the function of the amicus curiae becomes a puzzle.
There is a second reason for revisiting the issue. Krislov wrote in the early 1960s, before the existence of computerized legal research, so he had no easy way of counting cases. He drew his conclusion from a very small sample, a sample that nevertheless included cases clearly at odds with the point he was trying to prove. Today, with the benefit of an enormous word-searchable database of court opinions, we can do better.
In this paper I accordingly investigate the role of the amicus curiae in early American practice. The paper concludes that:
(1) There was never a time in American practice when an amicus was only allowed to offer neutral advice. …