Amicus Curiae

The term amicus curiae translates to mean “friend of the court.” For example, amicus curiae briefs filed by the American Civil Liberties Union (ACLU) have “amicus curiae” printed on them. What this means is that the ACLU is not a party to the case, but simply wants to provide information or expertise to the court to help shed light on the issues at hand. To explore this concept, consider the following amicus curiae definition.

Definition of Amicus Curiae

Pronounced

Uh-mee-kus   kur-ee-uh

Noun

  1. A “friend of the court,” or someone who is not a party to a case but who provides information or expertise to the court that can help clarify the issues in the case.

Origin

Early 17th century          Modern Latin

What is the Meaning of Amicus Curiae?

While amicus curiae translates to “friend of the court,” it refers to an individual or party that is providing expert information to the court on the subject matter of a particular case before the court. The history of amicus curiae proves that this almost exclusively occurs in Supreme Court cases. In such a case, the Court must permit the individual or group that is not a party to the case to advise the court.

The amicus curiae (friend of the court) submits to the court an amicus brief, which must follow a very specific format. This allows the court to more easily assimilate the information provided by the “friend.”

History of Amicus Curiae

The history of amicus curiae originated in Roman law. The English then adapted it to their own legal system, and from there it branched out to common law systems the world over. In more recent years, the history of amicus curiae has brought it around to international law, specifically regarding human rights cases. From there, this concept moved on to civil legal cases, but it is still most prevalent in human rights law.

U.S. Supreme Court Rules

When it comes to filing an amicus brief with the U.S. Supreme Court, there are certain rules that amicus curiae must follow. For instance, one of the U.S. Supreme Court rules is that an amicus brief should only cover an important issue not already covered, but which may provide the court with “considerable help.” Another of the U.S. Supreme Court rules is that the brief’s cover must either list the party the brief is supporting, or whether the brief only supports the affirmance or reversal of the lower court’s decision.

Further, the U.S. Supreme Court rules require that all amicus curiae, or amici, who are non-governmental must identify anyone who provided a monetary donation in support of the preparation and/or submission of the brief. The amicus curiae must serve the Court with 40 copies of his finished brief, in booklet format. The amici must have the Court’s consent to file the brief, and it is very rare that the Court will grant him the time to orally argue it.

Writing an Amicus Brief

When writing an amicus brief, it is important that the brief be as effective as possible to get the court’s attention, and possibly even sway its decision. To do this, the amici must not pad the brief with fluff, and he must not rehash the same issues that the parties have already argued. This is one surefire way to irritate the court and have all that work thrown in the garbage.

There are three areas that the party writing an amicus brief can cover:

  • Amplify or supplement the arguments the parties have already made, or present a completely different argument not yet raised by any party.
  • Consequences of a decision that no one has yet considered which can affect individuals who are not parties to the case.
  • Importance of the case by simply being heard.

Amicus curiae should limit the brief to 20 pages or fewer, and they must follow the court’s rules carefully before submitting such a brief. Interestingly enough, the rules for the formatting of an amicus brief covers such things as:

  • Size and brightness of the paper on which it is printed (8 1/2″ x 11″)
  • Maximum word count
  • Margin size (including footnotes)
  • Font face and size (at time of publication, Century Schoolbook, 12 point), and line spacing
  • Binding requirements (the 8 1/2″ x 11″ paper size must be cut to 6 1/8″ x 9 1/4″);
    • Cover color (varies by type of brief), paper weight, and gloss
    • Booklets must be saddle-stitched or perfect bound

The court does not have time to review a frivolous motion, or such large documents that are poorly organized. An amicus curiae may risk sanctions for submitting a document that wastes the court’s time.

Examples of Amicus Curiae Cases Evolving Over Time

Amicus curiae examples have changed remarkably over the years. For instance, amicus curiae examples in the landmark case Brown v. Board of Education (1954) totaled only six, while Roe v. Wade, heard only about 20 years later, received 23.

By contrast, amicus curiae examples in the matter of National Federation of Independent Business v. Sebelius, which dealt with the Affordable Care Act in 2011, totaled 136. This means that the number of amicus curiae briefs presented has grown by about six times what amici presented in cases only forty years ago.

Amicus Curiae Example Involving Same-Sex Marriage

Perhaps the most important example of amicus curiae in a recent court case is that which occurred in the matter of Obergefell v. Hodges (2015). Here, the U.S. Supreme Court made history when it ruled that same-sex couples throughout the U.S. could enjoy the fundamental right to marry under the law. In other words, it would now be the law of the land that same-sex couples could marry, and that every state in the union must recognize their marriage as legal.

As far as amicus briefs go, the Court made history here, too. The Court saw the submission of 148 amicus curiae briefs with regard to this case. That was more amicus briefs than the Court had ever seen submitted on one case. One of these briefs was historic in and of itself, with nearly 380 businesses coming together to support the business reasons behind why the Court should rule in favor of this most basic of human rights.

Background

This case began when a plethora of same-sex couples sued state agencies in Kentucky, Michigan, Ohio, and Tennessee. Their arguments were that their states’ bans on same-sex marriage, and/or their refusal to recognize same-sex marriages as legal, was unconstitutional. Specifically, the Plaintiffs argued that these states were infringing on their rights under the Equal Protection Clause and the Due Process Clause of the 14th Amendment. One group even filed a Civil Rights Act case.

In every case, the trial court ruled in favor of the plaintiffs. The U.S. Court of Appeals for the Sixth Circuit, however, reversed the trial court. The Court argued that these states’ ban on and refusal to acknowledge same-sex marriage as legal did not, in fact, violate the Plaintiffs’ 14th Amendment rights.

U.S. Supreme Court

The plaintiffs took their case to the U.S. Supreme Court, which decided 5–4 that the Fourteenth Amendment did, in fact, require a state to recognize a same-sex marriage performed in another state as legal in its own. Further, the Court held that the 14th Amendment also required states to provide licenses to people of the same sex for the purpose of getting married.

In its own words, the Court wrote:

“There may be an initial inclination to await further legislation, litigation, and debate, but referenda, legislative debates, and grassroots campaigns; studies and other writings; and extensive litigation in state and federal courts have led to an enhanced understanding of the issue. While the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a fundamental right.

Bowers, in effect, upheld state action that denied gays and lesbians a fundamental right. Though it was eventually repudiated, men and women suffered pain and humiliation in the interim, and the effects of these injuries no doubt lingered long after Bowers was overruled. A ruling against same-sex couples would have the same effect and would be unjustified under the Fourteenth Amendment. The petitioners’ stories show the urgency of the issue they present to the Court, which has a duty to address these claims and answer these questions.

Respondents’ argument that allowing same-sex couples to wed will harm marriage as an institution rests on a counterintuitive view of opposite-sex couples’ decisions about marriage and parenthood. Finally, the First Amendment ensures that religions, those who adhere to religious doctrines, and others have protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths. Pp. 23–27.

The Fourteenth Amendment requires States to recognize same-sex marriages validly performed out of State. Since same-sex couples may now exercise the fundamental right to marry in all States, there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex.”

Related Legal Terms and Issues

  • Legislation – A law, or body of laws, enacted by a government.
  • Litigation – The process of taking legal action; the process of suing someone, or trying them for a criminal act.
  • Sanction – A penalty levied against an individual for failing to obey a law or rule, such as one handed down by a court.

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