If your mom never told you the rule about “if you’ve got nothing useful to say,” the Supreme Court is here to help:
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.
— Supreme Court Rule 37.1
Lawyers and their clients should heed this advice not just because it’s the polite and proper thing to do. Amicus detritus, a parasitic species feeding on the host merits case, is not always harmless. No pleading can increase the time available to read briefs, nor can a brief lengthen the Justices’ attention span. They’ve got only so many hours in a term to give a case. One hopes that each and every piece of paper filed in a case is given the highest level of exacting scrutiny, but there’s a meaningful risk that attention wasted wading through unnecessary briefing is attention not spent on those that might make a positive difference in the case. Worse, some amicus briefs are just plain embarrassing. Or even positively counterproductive. Any idiot can file an amicus briefs, and many idiots do.
The parties’ counsel have zero practical ability to act as gatekeepers. Not that they don’t try. If a case is likely to see meaningful amicus participation—and virtually every notable Supreme Court case qualifies—it’s good practice for counsel to set up an amicus conference where some sense of what’s perceived to be useful might be exchanged, some understanding of what’s coming down the amicus pike is gleaned, and above all, some effort is exerted to minimize the number of filings and have the amici streamline their arguments.
But this is the proverbial exercise in herding cats. Not everyone wants everyone, or anyone, on their briefs. “My board won’t let anyone join” is a common refrain. For many amicus filers, the brief’s substance is secondary. What’s important is that they can put out a press release noting their participation, which they don’t want diluted. The ugly ones will later exaggerate their role, or advance theories as to why their umpteenth regurgitation of the same basic points made by the parties won the case.
Ultimately, it all goes back to the wrongheaded view of litigation as a form of democracy. Instead of persuading judges to interpret the law, we’re voting to make the law by filing lots and lots of amicus briefs. If we file more than the other guys, we should win. And we “want our voices heard” because then we’re “doing something” which translates into fundraising, nevermind what value (if any) that “something” has.
To this landscape, welcome a new low in the referendum-by-amicus industry: the “People’s Brief!” Before describing this gimmick any further, let me lay my ideological cards on the table. I support marriage equality—as a matter of policy, as a matter of basic decency, and as a matter of constitutional law. These aren’t new positions for me. But this sort of amicus brief, filed in support of challenges to gay marriage bans, is alien to traditional American values. It’s not the brief’s arguments, or the manner in which they’re made—subjects I’m not addressing. It’s the conceit that this brief is filed on behalf of 207,551 people who voted for, errr… “signed” it by visiting a website.
Seriously? What if the anti-marriage equality people clicked through 207,552 “signatures?” Would they win, since that’s “more?” The plaintiffs in these cases are suing because democracy failed them. They didn’t have the votes in the places where votes count: the ballot box at referendum time, the state legislature. They turned to the courts because the Constitution, and the judiciary that is supposed to enforce it, must check democracy’s excesses. Majorities are only entitled to have their way when they aren’t having their way with someone’s rights. But if constitutional interpretation is all about who has the most votes for a policy, why should the Court care about votes on an internet brief when it can look to the result of a real statewide election?
Sure, some amicus briefs are valuable not so much for the message they convey, but for the identity of the people conveying it. A brief for all 100 Senators might make a statement that a brief by two or three Senators does not. But people, get over yourselves. Does anyone doubt that the Justices know that marriage equality is supported by at least 207,551 people? If that were anywhere near the total number of people in America supporting the cause, it wouldn’t be very impressive. And the Supreme Court does not and should not care that Joe Schmo from Kenosha “voted” for a legal argument, especially where Schmo’s only function is to vent himself and raise the tally. Isn’t there an online comment section or message board for this kind of thing? Begone with you, Mr. Schmo! There are plenty of places for you to pitch your soapbox, court ain’t one of them. “The People” most certainly do not “get their say” here.
But this is not to deny that a “People’s Brief” has useful functions. HRC, which organized this thing, just made for itself a very valuable mailing list. I don’t know if they’d use it as such or rent it out, or if some privacy guarantees were made on the now-closed signature webpage, but the light bulbs must be flickering in interest group and direct mail operations all over this town.
And there are other ways to monetize this sort of brief. I’d bet Mr. Schmo would love to have his very own Supreme Court brief booklet with his name inside, right next to his plaque from the Special Snowflake Society. And thus, another set of winners in our brave new democracy: the Supreme Court printers, FedEx, UPS, and the Post Office, who will not only be paid to deliver twelve tons of dead trees (who will think of the trees!) to the Court, but another thousand or five briefs to the lead client for resale. Lawyers can’t usually mark-up costs for clients, but what prevents HRC from selling copies of its “historic” brief? If only 3% of the “amici” would pay $5 above the printing and shipping costs, the group could net over thirty grand. And while they’re at it, why not sell tiered sponsorships? For so much money, a “platinum” amicus can have ten booklets and his or her name on the cover. Perhaps “gold” sponsors can be listed first. And on and on.
This at-best feel-good stunt does not advance the public’s understanding of our legal system. It actually makes people dumber, re-enforcing the unhealthy notion that constitutional litigation is just another poll. It undermines the brief’s strength, because it’s no longer about the argument’s merits but the number of people who “voted” for it—and ironically, in the service of an anti-democratic position. It wastes paper printing a telephone-book appendix. And even were the brief to bring to the Court’s attention under-served legal arguments, the Court may seriously wonder whether the brief is designed to serve that noble purpose, or some other purpose. See Rule 37.1.
If constitutional litigation is now just about out-voting the other side, what’s the point? Once the Supreme Court is finished striking down gay marriage bans–on the merits, notwithstanding the support such laws enjoy among real voters—it should amend Rule 37.1 to prohibit this sort of briefing.