Filing of Amicus Curiae Briefs in State Courts of Last Resort: 1960-2000
Corbally, Sarah F., Bross, Donald C., Flango, Victor E., Justice System Journal
This study examines the use of amicus curiae briefs in state courts of last resort. Key findings are that use of amicus varies greatly among states, with the majority of filings occurring in a small number of states. The hypothesis that restrictiveness of court rules may impact the filing of amicus briefs was tested, but not confirmed, leading to speculation that extensive filing of amicus briefs may lead to more restrictive court rules. Amicus briefs were most often used in tort and criminal cases. Finally, the courts' willingness to acknowledge, cite, and solicit amicus briefs was explored as a possible indicator of their influence. Amici were acknowledged in at least a third of the cases, and arguments made in the briefs were discussed in 82 percent of the sample cases.
Under the separation of powers, courts have always been insulated from public pressure common to the "political" branches under the rationale that ours is a government of laws not men. Courts must use legal reasoning to interpret the law and should not be influenced by public opinion. Indeed, "elaborate procedures have been established to deny groups access to the judiciary and to exclude from the judicial forum all information except that which is presented to them by the lawyers within the courtroom" (Peltason, 1955:28). Parties with a grievance and "standing to sue" can initiate judicial proceedings. The NAACP, for example, chose to use the courts to achieve their objectives in the Restrictive Covenant cases rather than to lobby Congress or the executive branch agencies (Vose, 1959).1 Unless they are parties to a suit, interest groups gain access to the judiciary much less directly than to either the legislative or executive branches.2 In states that select judges by popular election, the public is invited to participate in the process by which those who make decisions are chosen. Otherwise, access to courts is available by sponsoring test cases, by trying to influence judicial opinion through articles in law reviews, and ultimately by trying to change the laws or statutes upon which courts rely to interpret law.
Another important and legitimate way that the public and organized groups can influence the development of law is though the use of amicus curiae briefs.3 In recent times, filing of these briefs has been the most popular method of influencing judicial policymaking.4 These "friend of the court" briefs may provide legal support to one or the other parties to the suit or may supply useful information that neither party included in their briefs. Either through permission of the parties themselves or permission of the court, groups can present their arguments even if they are not parties to the suit. Obviously, parties are most likely to grant permission to groups to file amicus briefs if they endorse the leading arguments of the parties. Filing amicus briefs allows groups to demonstrate their activity and effectiveness and, thus, may help attract new members. As O'Connor and McFaIl (1992:271) state: "A group has to be able to show its members that their efforts are paying off, and filing amicus briefs is the easiest way to do that."
AMICUS BRIEFS IN THE U.S. SUPREME COURT AND STATE COURTS OF LAST RESORT
Amicus Briefs in the U.S. Supreme Court
The first studies of amicus briefs were case studies of interest group activity in the U.S. Supreme Court.
Forty years ago, in "The Amicus Curiae Brief: From Friendship to Advocacy," Krislov summarized the development of amicus practice from Roman times to 1963. He noted that amicus participation is very likely in important legal controversies. "Where the stakes are highest for the groups, and where the needs on the part of the judges for information and for sharing of responsibility through consultation are at a peak, access has appropriately, and almost inevitably, been at its greatest" (Krislov, 1963:703-04). he further asserts that the U.S. the Supreme Court "has helped foster (the) development (of amicus curiae) as a vehicle for broad representation of interests, particularly in disputes where political ramifications are wider than a narrow view of common law litigation might indicate" (Krislov, 1963:720). …