The Supreme Court is getting too popular. Increasingly in recent years, new court cases come with a battery of “amici curiae” — Latin for “friends of the court.” An “amicus brief,” the theory goes, can assist in the court’s decision-making process by bringing to the justices’ attention factual or legal points not adequately addressed by the main parties, or by helping to underscore the stakes of the parties’ arguments as they would apply to other cases going forward.
Although every American court allows for the filing of such briefs, they’ve become a central part of litigation in the Supreme Court.
Although every American court allows for the filing of such briefs, they’ve become a central part of litigation in the Supreme Court. Almost every dispute the court hears now features these so-called friends on both sides; and the highest-profile cases sometimes draw more than 100 briefs. Perhaps not surprisingly, as a new investigation by Politico reports, more and more of those briefs are being spearheaded by the same small network of conservative and right-wing groups. And their arguments are showing up with growing regularity in the justices’ written opinions, notably in Justice Samuel Alito’s majority decision overturning Roe v. Wade.
The Politico report helps spotlight a practice that has been hiding in plain sight for years. But it also underscores the bigger problem with all sorts of amicus briefs in the Supreme Court: the justices’ increasing reliance upon these briefs as authoritative sources for factual or legal contentions that haven’t been tested in the lower courts and are being advanced by groups or institutions with agendas of their own. Especially as the court has turned more sharply to the right in recent years, that reliance has likewise skewed toward claims advanced by parties with an obvious (and, as Politico suggests, coordinated) ideological bent, at the expense of not only the rules that are supposed to govern the…
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