Dr. Gurumurthy Kalyanaram, Dean, Expert Witness and former NYIT and UT Dallas professor Gurumurthy Kalyanaram reports on the role of amicus curiae briefs filed in support of the plaintiffs and/or defendants in lawsuits in US Supreme Court.
An amicus curiae (literally "friend of the court") is an individual who is not a party to a lawsuit but who offers information that is relevant to the lawsuit. The presentation of information to the Court may take the form of legal opinion, testimony or learned treatise (the amicus brief) and 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. The decision on whether to admit the information lies at the discretion of the court. The most popular mode of presentation is a brief.
Why are amicus briefs so popular? That is because of the belief by all parties that such briefs are filed to supplement the Court’s understanding of facts. Since the Supreme Court decisions are often meant to address more broad issues (e.g., are there limits to search of smart phones by the police? What does constitutes a “Report” in the context of False Claims Act), the Justices look for what they consider to be objective information/data. The amicus briefs are considered good source of such data/information.
Amicus briefs have become powerful instruments in cases which are decided without consensus. Per National Law Journal, “In the 2013-14 term, the justices cited amicus briefs in 80 percent of their 5-4 decisions, compared to just 54 percent of cases in which the decision was unanimous.”
There is an emerging concern about the facts presented by amicus briefs. Professor Larson in her recent critique argued, “The trouble with amicus facts, I argue, is that today anyone can claim to be a factual expert. With the Internet, factual information is easily found and cheaply manufactured. Moreover, the amicus curiae has evolved significantly from its origin as an impartial “friend of the court.” Facts submitted by amici are now funneled through the screen of advocacy. The result is that the Court is inundated with eleventh-hour, untested, advocacy-motivated claims of factual expertise. And the Justices are listening.”
Justices Antonin Scalia and Samuel Alito have also been critical of the amicus briefs arguing that “Supreme Court briefs are an inappropriate place to develop the key facts in a case,” and rejecting “intensely empirical” arguments.