Amicus Curiae Briefs in the Supreme Court

Abstract

The decisions of the U.S. Supreme Court are the law of the land and create precedents that bind lower courts and the justices. The impact of any Supreme Court decision is seldom confined to the two parties in the case. This presents two dilemmas. First, how can the Court accurately gauge the effects of its decision beyond the two parties? Second, for groups anxiously awaiting a decision that is going to impact their future, how do they convey their views to the justices? Perhaps the best solution to both is the amicus curiae (friend of the court) brief. Groups file such briefs to provide the Court with expertise, to expand or contract the issue in the case, and to provide an informal tally of public opinion. The amicus briefs serve the purposes of the justices as well. For their part, justices have a tremendous amount of work and a limited staff of clerks to help them. They are cognitive misers who cannot process all the relevant information they need and thus rely on cues and heuristics to help them make reasonably informed decisions. The existing scholarship provides a window into the growth of the use of amicus briefs and their impact on decisions. The use of the amicus brief also has important implications for representation and political participation. It can provide an entry to the system for groups that otherwise might lack access. The dramatic rise in the use of amicus briefs in the Supreme Court has altered the dynamics of decision making and provides the research agenda for the next round of studies.