Rethink and Reform the Amicus Process
SCOTUS does policy and politics; it must invite amici to do the same
In this column:
SCOTUS is engaged in political and policy considerations
Today’s amicus-brief process pretends that cases are just about law
4 reforms to enable “friends of the court” to fully engage with SCOTUS
Suspending Disbelief
One of the great fictions of American public life is that justices of the U.S. Supreme Court simply focus on the law when considering cases.
We’re told that they don’t do policy or politics. Instead, they call ball and strikes. They use straightforward canons of construction. They impartially apply the plain meaning of the text.
We’re supposed to believe that it is mere coincidence that the justices’ votes so frequently line up with the policy preferences of the party of the president who nominated them. Or that the methodologies they use just happen to produce outcomes that comport with their politics. For instance, we’re expected to accept that legal interpretation alone leads the Court’s progressives to vote as a reliable bloc for politically progressive results.
Yes, this noble lie has some value; think of it as a “civic purpose.” It helps protect the legitimacy of the justices and the Court as an institution. The justices can vote and write with policy and politics in mind (which they believe advances the common good) while enjoying the insulation provided by their black robes. Court defenders can invoke the judiciary’s apolitical, a-policy ethic when the motives of justices are questioned.
But no one really believes that the justices are just doing law. Beyond their predictable votes in high-profile cases, there are explicit interpretive approaches that require extra-legal thinking. Justice Breyer argued that judges consider six elements: text, history, tradition, precedent, purpose, and consequences, and he noted that he places a high priority on purpose and consequences. But once you start assessing the lessons of history, a legislature’s purposes, and the merits of a decision’s consequences, you’re squarely in the realm of political and policy judgments.
Some judges believe it is their duty to ensure the Constitution evolves with the times, so their constitutional interpretations track their views on social progress. But one’s definition of “social progress” is built on political and policy judgments.
Some judges believe they must apply the implicit values underlying a statutory or constitutional provision. But divining and reifying abstract values is the stuff of political and policy deliberation.
Some judges prioritize institutional stability and the preservation of the Court’s public standing. That isn’t just law; that’s political and policy prudence.
So justices are clearly not just doing law. They know and we know they are also doing politics and policy. It’s time to reform the amicus process to reflect this reality.
To be blunt, those interested in influencing the Court shouldn’t be required to play a role in the theatre that the Court is just doing law.
Expand the Court’s Circle of Friends
Amicus (“friend of the court’) briefs are filed by individuals and groups that are not parties to a case but have an interest in the case’s outcome. These briefs aim to persuade justices. In at least four ways, the process governing them could be improved to reflect the policy and political nature of the Court’s work.
Questions Actually Presented
The Court should significantly expand each case’s “questions presented.” Currently, the Court shapes the public’s understanding of and the parties’ arguments in a case by articulating one or more questions that are to be resolved by the decision. These are narrow questions of law. Amicus briefs are built around those questions.
But the legal “question presented” reflects only a fraction of what the justices are actually thinking about and what the justices will eventually write about. Most of the highly relevant issues left unmentioned are matters of politics and policy. This includes abstract understandings of justice, values, concerns about the Court’s legitimacy, public opinion, general principles of good governing, the real-life ripples of various possible decisions, and so on.
The Court is the least democratic and most cloistered branch of government. This is always a liability. But that problem multiplies when the justices tell the public that they are focused on a technical legal matter when in fact they are thinking about a host of other questions. The Court should continue to articulate the specific question to be resolved, but we shouldn’t have to guess what else is on justices’ minds. They should issue a list of non-legal matters they are considering so amicus briefs can engage on those essential subjects.
If justices in an energy case are thinking about climate change and the national-security consequences of dependence on foreign oil, they should say so. If justices in a Big-Tech anti-trust case are thinking about economic inequality, the harm caused by social media, and the influence of the Chinese government, they should say so. If the justices’ votes are going to be affected by their views on school shootings, fetal pain, deaths of despair, intergenerational poverty, anger at progressive-controlled newspapers, or anger at conservative-controlled cable news, they should say so.
In other words, justices must be honest with themselves and the rest of us about the issues involved so interested parties can engage.
Soliciting Briefs
Justices are unquestionably great experts when it comes to law. But they are more like very smart amateurs in most of the other areas that will influence their decisions: History, policymaking, the philosophy of justice, public opinion, the intent of legislators, the intent of executive-branch administrators, etc. The Court should cop to its amateur status on such subjects and actively and publicly solicit guidance on non-legal matters that matter.
It should be a regular occurrence for individual justices and the chief justice (on behalf of the entire Court) to announce the types of political, policy, history, etc. briefs that are desired. The justices can and should prime this pump.
The justices and their clerks know constitutional provisions and precedents inside and out. They know which are relevant in particular cases and how they fit. The Court doesn’t need to solicit much input there. But a justice might sense that a case should be informed by the principles of republicanism or communitarianism or the millennia-long conversation about the meaning of justice or the history of an industry or sector. No justice can know everything about everything. They should solicit, as appropriate, non-legal input on why Dillon’s Rule is so important to state lawmakers, what’s behind the decline in public trust in American institutions; Tocqueville’s and Nisbet’s and Putnam’s arguments about civil society; the Rawls-Nozick debate on justice and the state.
A trial judge hearing burglary cases doesn’t need to solicit many amicus briefs because nearly all of her questions and considerations are matters of law—evidence, procedure, and so on. Since justices’ considerations—for better or worse—are much more expansive, they need to admit it to the public and seek input from a larger universe of amici.
No Lawyers Required
Currently, every amicus brief must be filed by a member of the U.S. Supreme Court bar. That is unnecessary, and it perpetuates the fiction that the Court is only dealing with legal matters. Members of the SCOTUS bar are talented professionals for sure. But they are not specially qualified to lead, much less bless, a brief dedicated to matters of politics, policy, philosophy, or history. Those submitting a non-legal brief should not need the participation of any lawyer. Other mechanisms could be developed to ensure that each brief has a qualified “participant of record” who could be held accountable for the brief’s content and adherence to necessary rules.
More Governing Leaders
Prior to a recent policy change at the Court, individuals and groups technically needed approval to submit amicus briefs. During that previous era, government entities didn’t need this permission so long as their briefs were filed by the entity’s authorized legal official (e.g., state AG, general counsel). That policy was another reflection of the fiction that the Court only does law (not policy or politics).
Though that restrictive rule is gone, it further acculturated government leaders to the fiction: Too many state and local officials still see a canyon between themselves and the Court—the former does governing, the latter does law. SCOTUS should explicitly, publicly close that perceived gap and welcome, even solicit, regular briefs from the political and policy leaders of government entities
All public bodies have constitutional and/or statutory powers and obligations. All public officials—not just lawyers--are responsible institutional actors. Since SCOTUS is involved in policy and politics, it needs to hear about policy and politics from more policy and political leaders. That means more non-legal briefs from school boards, mayors, county executive, state legislators, governors, county executives, state cabinet secretaries…
Different Times, Different Briefs
These recommendations reflect the reality of this era. Years ago, legislatures were dominant, and courts did their utmost to stay out of the policymaking process. Indeed, courts tried to leave governing decisions—matters of policy and politics—to the governing branches.
Today, however, the judiciary, especially SCOTUS, is fully engaged in governing. This is partly because Congress is anemic and the executive branch often lacks self-restraint. But it’s also because judges feel empowered to substitute their judgment for that of the people and their representatives.
For as long as SCOTUS is an active player in policy and politics, the amicus process should explicitly engage policy and politics.