amicus curiae brief

An amicus curiae literally means "friend of the court" in Latin. However, in the United States, an amicus curiae brief is an opinon filed by a party with interest in a case's outcome. They are usually written in legal terms and are meant to influence the decision of a court, much like an average brief written by opposing counsels. Amicus briefs are most often filed in cases with a high degree of standing, like Supreme Court Cases, and are usually submitted by third parties, witnesses, or interest groups.

The most notable amicus brief of late is has recently been filed by the Solicitor General for the Bush Administration, in a case involving the affirmative action policy of the University of Michigan. The Administration believes that the policy is unconstitutional under the equal protection clause and therefore must be struck down. It is worthy of mention because it is one of the only ever amicus briefs filed by the Solicitor General, and critics argue that it represents a continuing shift toward the politicization of the judical branch.

See also: Amicus curiae

A brief amicus curiae ("friend of the court") is is a brief filed by an individual (or, more often, an organisation) that is not a party to a case, and has no actual direct interest in the outcome. Usually, amicus briefs are filed by political organisations that wish to emphasise a particular legal issue present in a case. When there is an important public policy at stake, the state or federal government may also file an amicus brief, usually through the state solicitor/attorney general, or through the federal solicitor general. In cases involving controversial issues (e.g. death penalty, discrimination, international law, affirmative action, etc.), a court will often have to wade through several amicus briefs on each side.

A person or group seeking to file an amicus brief must observe certain procedural formalities. First, the organisation must seek the leave of the court to file a brief amicus curiae. Second, an amicus brief cannot raise issues for the first time. Amici may only take positions on the issues already brought before the court by the parties to the case¹. Third, the putative amicus curiae must disclose whether counsel for party to the case participated in any way in the drafting or production of the brief, or whether any party contributed financially to the brief's submission.

The following are the rules of the U.S. Supreme Court with regard to the filing of briefs amici curiae.

Rule 37. Brief for an Amicus Curiae
1. An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.

2. (a) An amicus curiae brief submitted before the Court’s consideration of a petition for a writ of certiorari, motion for leave to file a bill of complaint, jurisdictional statement, or petition for an extraordinary writ, may be filed if accompanied by the written consent of all parties, or if the Court grants leave to file under subparagraph 2(b) of this Rule. The brief shall be submitted within the time allowed for filing a brief in opposition or for filing a motion to dismiss or affirm. The amicus curiae brief shall specify whether consent was granted, and its cover shall identify the party supported.

(b) When a party to the case has withheld consent, a motion for leave to file an amicus curiae brief before the Court’s consideration of a petition for a writ of certiorari, motion for leave to file a bill of complaint, jurisdictional statement, or petition for an extraordinary writ may be presented to the Court. The motion, prepared as required by Rule 33.1 and as one document with the brief sought to be filed, shall be submitted within the time allowed for filing an amicus curiae brief, and shall indicate the party or parties who have withheld consent and state the nature of the movant’s interest. Such a motion is not favored.

3. (a) An amicus curiae brief in a case before the Court for oral argument may be filed if accompanied by the written consent of all parties, or if the Court grants leave to file under subparagraph 3(b) of this Rule. The brief shall be submitted within the time allowed for filing the brief for the party supported, or if in support of neither party, within the time allowed for filing the petitioner’s or appellant’s brief. The amicus curiae brief shall specify whether consent was granted, and its cover shall identify the party supported or indicate whether it suggests affirmance or reversal. The Clerk will not file a reply brief for an amicus curiae, or a brief for an amicus curiae in support of, or in opposition to, a petition for rehearing.

(b) When a party to a case before the Court for oral argument has withheld consent, a motion for leave to file an amicus curiae brief may be presented to the Court. The motion, prepared as required by Rule 33.1 and as one document with the brief sought to be filed, shall be submitted within the time allowed for filing an amicus curiae brief, and shall indicate the party or parties who have withheld consent and state the nature of the movant’s interest.

4. No motion for leave to file an amicus curiae brief is necessary if the brief is presented on behalf of the United States by the Solicitor General; on behalf of any agency of the United States allowed by law to appear before this Court when submitted by the agency’s authorized legal representative; on behalf of a State, Commonwealth, Territory, or Possession when submitted by its Attorney General; or on behalf of a city, county, town, or similar entity when submitted by its authorized law officer.

5. A brief or motion filed under this Rule shall be accompanied by proof of service as required by Rule 29, and shall comply with the applicable provisions of Rules 21, 24, and 33.1 (except that it suffices to set out in the brief the interest of the amicus curiae, the summary of the argument, the argument, and the conclusion). A motion for leave to file may not exceed five pages. A party served with the motion may file an objection thereto, stating concisely the reasons for withholding consent; the objection shall be prepared as required by Rule 33.2.

6. Except for briefs presented on behalf of amicus curiae listed in Rule 37.4, a brief filed under this Rule shall indicate whether counsel for a party authored the brief in whole or in part and shall identify every person or entity, other than the amicus curiae, its members, or its counsel, who made a monetary contribution to the preparation or submission of the brief. The disclosure shall be made in the first footnote on the first page of text.

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¹ The rule against raising new issues in an amicus brief may seem to contradict the statement in Rule 37.1 that "An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court." There is a fine, but important distinction between "new matter" and a "new issue." An example can illustrate this:

A. Plaintiff and Defendant are in a dispute over whether a particular government policy violates the First Amendment. An amicus submits a brief arguing that the policy violates the Fifth Amendment Takings Clause. This is a new issue, that has not been raised by the parties.

B. Plaintiff and Defendant are in a dispute over whether a government policy violates the First Amendment Free Speech Clause. An amicus submits a brief pointing out several Supreme Court free speech cases that overwhelmingly favour the Defendant. This is new matter that an amicus may properly bring before the court.