We have, on multiple occasions, addressed the significance (or insignificance) of the amicus curiae or “friend of the court” brief. Our previous discussion here, here, and here have largely revealed that, while the briefs are submitted in many of the headline-grabbing cases, the effects of the briefs written and submitted by the amici are often hard to evaluate.
Additionally, there is not singular source for the briefs that are filed. The Sixth Circuit and Supreme Court, particularly before a controversial or significant case is heard, are inundated with amicus curiae briefs from a variety of parties including unions, professional associations, academic institutions, important individuals in a particular field, or any level of governmental body. However, despite the impressive frequency and diversity of amicus briefs, it often proves more challenging to share a unique perspective beyond the position of the parties.
To reevaluate the practical implication of these briefs, we conducted a survey of 2015 Sixth Circuit cases that used the word “amicus curiae,” “amici,” or “amicus brief.” Somewhat distinguishable from our previous analysis, which spanned several years and only discovered 10 cases, our 2015 search yielded 52 cases where at least one amicus brief was filed. After a deeper investigation, we discovered that 8 of the cases only contained a discussion of an amicus brief filed in a case from a previous year and, while this is instructive in demonstrating that some amicus briefs have enough influence to have legal staying power, these cases were not helpful for our 2015 research. Of the 44 remaining, applicable cases, the Sixth Circuit only discussed or even referenced the position of an amici in 5 cases; only 1 of those was discussed by the Court in a positive light. Thus, in most cases, the Sixth Circuit does not expressly mention the amicus brief.
So why does the Court not discuss the amicus positions with greater regularity? A common problem is that the amici often parrot the briefs of the appellee and appellant. The court has, on many occasions, made it clear that the role of amicus brief are, at least in part, to “[draw] the court’s attention to law that might otherwise escape consideration.” If the law is fully discussed in the parties’ briefs, the amicus briefs serve little purpose other than to reiterate.
Of course, it is impossible to evaluate whether amicus briefs that weren’t cited actually impacted the decisional calculus of the Court. But if you are considering drafting (or soliciting) an amicus brief, it is important to keep in mind that the amicus brief should really share a unique perspective rather than reiterate the position of the parties. Often, stepping back and giving the court a broader perspective on a particular issue can be useful. The court certainly wants to understand how a particular decision might impact the next case, and amicus parties can effectively convey such matters.