Explainer: What you should know about amicus briefs

June 27, 2019

Last week the U.S. Supreme Court ruled in The American Legion v. American Humanist Association that a 40-foot memorial cross located on public property in Bladensburg, Md., does not violate the Establishment Clause. The ERLC had filed an amicus brief in support of the petitioners alongside a diverse coalition of religious denominations representing more than 55 million Americans.

Here is what you should know about amicus briefs and how they are used by the courts.

What is an amicus brief?

An amicus brief is a learned treatise submitted by an amicus curiae (Latin for “friend of the court”), that is, someone who is not a party to a case who offers information that bears on the case but that has not been solicited by any of the parties to assist a court. The amicus brief is a way to introduce concerns ensuring that the possibly broad legal effects of a court decision will not depend solely on the parties directly involved in the case.

Which recent cases has ERLC filed amicus briefs?

Because Washington remains a deeply divided city along partisan lines, many critical issues are now debated in the courts. The ERLC directs its resources to cases deciding the sanctity of human life and the future legality of religious liberty. A central way for the ERLC to address the courts is through filing amicus briefs.

In 2018, in addition to the aforementioned Supreme Court case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commision, the ERLC also filed a brief in the landmark pro-life case National Institute of Family and Life Advocates (NIFLA) v. Xavier Becerra, Attorney General of California.NIFLA had implications for free speech and the life-saving work of pregnancy resource centers in communities all around our country. Thankfully, the justices decided a convincing victory for religious liberty and the protection of pro-life work by ruling 5–4 in favor of NIFLA.

One of the cases ERLC engaged at the appellate level was Gaylor v. Mnuchin at the 7th Circuit Court of Appeals. At stake in this case is a tax-free housing allowance that allows pastors, rabbis, and other religious leaders to live in close proximity to their houses of worship. The 7th Circuit recently ruled 3–0 to uphold the constitutionality of the housing allowance.

Can amicus briefs be submitted to all courts (i.e., state, federal, Supreme Court)?

Amicus briefs are generally filed only in appellate cases heard by appeals courts, including intermediate courts of appeal, state supreme courts, and the U.S. Supreme Court.

Who can submit an amicus brief?

The rules about who can file an amicus brief in state courts are determined by the individual states. In federal courts, Rule 29 of the Federal Rules of Appellate Procedure governs such briefs:

The United States or its officer or agency or a state may file an amicus brief without the consent of the parties or leave of court. Any other amicus curiae may file a brief only by leave of court or if the brief states that all parties have consented to its filing, but a court of appeals may prohibit the filing of or may strike an amicus brief that would result in a judge's disqualification.

In the Supreme Court, Rule 37 provides that “an amicus curiae brief which brings relevant matter to the Court’s attention that has not already been brought to its attention by the parties is of considerable help to the Court. An amicus brief which does not serve this purpose burdens the staff and facilities of the Court and its filing is not favored.” While any interested party can contribute or sign an amicus brief, only an attorney admitted to practice before the Supreme Court can only file the actual brief. After filing, the Court decides whether it will accept the brief.

How many amicus briefs are filed with the Supreme Court each year?

There are few cases without amicus filings and many cases have cumulative filings that total in the double digits, notes Adam Feldman. For the 2018-2019 term (October to February) the Court received 529 amicus briefs.

Many groups file multiple briefs per year. The National Association of Criminal Defense Lawyers Cato Institute, ACLU, U.S. Chamber of Commerce, and American Bar Association are groups, as Feldman points out, that have each filed hundreds of briefs over their lifespans.

Do amicus briefs have any influence on Supreme Court rulings?

While it’s impossible to know how any particular amicus brief influences a justice or their decisions, one helpful proxy is the number of citations to such documents they include in their rulings. For example, in a 2014 law review article, law professor Allison Orr Larsen found 606 citations to amicus briefs in the 417 Supreme Court opinions decided from 2008 to 2013. Of those 606 citations, 124 of them—or roughly 20 percent—were citations to amicus briefs to support assertions of legislative fact.

Which case garnered the most amicus briefs?

Not surprisingly, the single case with the most amicus briefs is Obergefell v. Hodges, the 2015 same-sex marriage case. There were 147 briefs filed in that case. It is also the case with the most signatories on a single brief (207,551 signatories calling for nationwide legalization of same-sex marriage on The People’s Brief.)

Since then the case with the most amicus briefs was Masterpiece Cakeshop v. Colorado Civil Rights Commission, the 2018 case that determined whether a cakeshop owner’s reasons for declining to make a cake for a same-sex couple’s wedding celebration violated the free exercise clause.

ERLC joined amicus briefs filed in both of those cases.

Joe Carter

Joe Carter has an MBA from Marymount University and is the editor of the NIV Lifehacks Bible and the co-author of How to Argue Like Jesus. He and his wife, Misty, have one daughter. Read More