See also: Amicus curiaeA
brief amicus curiae ("friend of the court") is is a brief filed by an individual (or, more often, an organisation) that is not a party to a case, and has no actual direct
interest in the
outcome. Usually,
amicus briefs are filed by
political organisations that wish to emphasise a particular
legal issue present in a case. When there is an important
public policy at stake, the
state or
federal government may also file an
amicus brief, usually through the state
solicitor/
attorney general, or through the federal
solicitor general. In cases involving
controversial issues (e.g.
death penalty,
discrimination,
international law,
affirmative action, etc.), a
court will often have to
wade through several
amicus briefs on each side.
A person or group seeking to file an
amicus brief must observe certain
procedural formalities. First, the organisation must seek the
leave of the court to file a brief
amicus curiae. Second, an
amicus brief cannot raise issues for the first time.
Amici may only take positions on the issues already brought
before the court by the
parties to the case
1. Third, the
putative amicus curiae must
disclose whether counsel for party to the case participated in any way in the
drafting or production of the brief, or whether any party contributed financially to the brief's submission.
The following are the rules of the
U.S. Supreme Court with regard to the filing of briefs
amici curiae.
Rule 37. Brief for an Amicus Curiae
1. 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.
2. (a) An amicus curiae brief submitted before the
Court’s consideration of a petition for a writ of certiorari,
motion for leave to file a bill of complaint, jurisdictional
statement, or petition for an extraordinary writ, may be filed
if accompanied by the written consent of all parties, or if the
Court grants leave to file under subparagraph 2(b) of this
Rule. The brief shall be submitted within the time allowed
for filing a brief in opposition or for filing a motion to dismiss
or affirm. The amicus curiae brief shall specify whether
consent was granted, and its cover shall identify the party
supported.
(b) When a party to the case has withheld consent, a motion
for leave to file an amicus curiae brief before the
Court’s consideration of a petition for a writ of certiorari,
motion for leave to file a bill of complaint, jurisdictional
statement, or petition for an extraordinary writ may be presented
to the Court. The motion, prepared as required by
Rule 33.1 and as one document with the brief sought to be
filed, shall be submitted within the time allowed for filing an
amicus curiae brief, and shall indicate the party or parties
who have withheld consent and state the nature of the movant’s
interest. Such a motion is not favored.
3. (a) An amicus curiae brief in a case before the Court
for oral argument may be filed if accompanied by the written
consent of all parties, or if the Court grants leave to file under subparagraph 3(b) of this Rule. The brief shall be
submitted within the time allowed for filing the brief for the party supported, or if in support of neither party, within the time allowed for filing the petitioner’s or appellant’s brief. The amicus curiae brief shall specify whether consent was granted, and its cover shall identify the party supported or indicate whether it suggests affirmance or reversal. The
Clerk will not file a reply brief for an amicus curiae, or a
brief for an amicus curiae in support of, or in opposition to,
a petition for rehearing.
(b) When a party to a case before the Court for oral argument
has withheld consent, a motion for leave to file an amicus
curiae brief may be presented to the Court. The motion,
prepared as required by Rule 33.1 and as one document
with the brief sought to be filed, shall be submitted within
the time allowed for filing an amicus curiae brief, and shall
indicate the party or parties who have withheld consent and
state the nature of the movant’s interest.
4. No motion for leave to file an amicus curiae brief is
necessary if the brief is presented on behalf of the United
States by the Solicitor General; on behalf of any agency of
the United States allowed by law to appear before this Court
when submitted by the agency’s authorized legal representative;
on behalf of a State, Commonwealth, Territory, or Possession
when submitted by its Attorney General; or on behalf
of a city, county, town, or similar entity when submitted by
its authorized law officer.
5. A brief or motion filed under this Rule shall be accompanied
by proof of service as required by Rule 29, and shall
comply with the applicable provisions of Rules 21, 24, and
33.1 (except that it suffices to set out in the brief the interest
of the amicus curiae, the summary of the argument, the argument,
and the conclusion). A motion for leave to file may
not exceed five pages. A party served with the motion may
file an objection thereto, stating concisely the reasons for
withholding consent; the objection shall be prepared as required
by Rule 33.2.
6. Except for briefs presented on behalf of amicus curiae
listed in Rule 37.4, a brief filed under this Rule shall indicate
whether counsel for a party authored the brief in whole or
in part and shall identify every person or entity, other than
the amicus curiae, its members, or its counsel, who made a
monetary contribution to the preparation or submission of the brief. The disclosure shall be made in the first footnote on the first page of text.
1 The rule against raising new issues in an amicus brief may seem to contradict the statement in Rule 37.1 that "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." There is a fine, but important distinction between "new matter" and a "new issue." An example can illustrate this:
A. Plaintiff and Defendant are in a dispute over whether a particular government policy violates the First Amendment. An amicus submits a brief arguing that the policy violates the Fifth Amendment Takings Clause. This is a new issue, that has not been raised by the parties.
B. Plaintiff and Defendant are in a dispute over whether a government policy violates the First Amendment Free Speech Clause. An amicus submits a brief pointing out several Supreme Court free speech cases that overwhelmingly favour the Defendant. This is new matter that an amicus may properly bring before the court.