Picking Friends from the Crowd: Amicus Participation as Political Symbolism

49 Pages Posted: 26 Mar 2009 Last revised: 18 Aug 2014

Omari Scott Simmons

Wake Forest University School of Law

Abstract

The modern process of amicus curiae participation is a form of political symbolism reflecting the Supreme Court’s irreconcilable role in American democracy as a quasi-representative policy-making institution. Specifically, this political symbolism reassures the public, particularly vulnerable groups, of the Court’s democratic character. Amicus participation dispels external public criticism that the Court is detached and indifferent to the public, without significantly undermining the Court’s independence. Ultimately, the Court’s institutional legitimacy rests upon the dual pillars of independence and inclusion. Amicus participation contributes significantly to the latter. Critics of the Court’s current open door policy to amicus participation fear that the lack of additional constraints governing the submission of amicus briefs encourages partisan excess, promotes judicial activism, and unduly burdens the Court. However, the benefits to the Court and its multiple stakeholders outweigh these concerns. This Article builds upon the existing legal literature by (i) exploring amicus participation’s value to multiple stakeholders, not simply the Court, and (ii) highlighting the important link between amicus participation, political symbolism, and the Court’s institutional legitimacy.

Keywords: politics, amicus, briefs, supreme court, constitution, civil rights, interest groups, courts, stakeholders, legitimacy, institutions, justices

Suggested Citation

Simmons, Omari Scott, Picking Friends from the Crowd: Amicus Participation as Political Symbolism. Connecticut Law Review, Vol. 42, No. 1, 2009; Wake Forest Univ. Legal Studies Paper No. 1367801. Available at SSRN: https://ssrn.com/abstract=1367801

Omari Scott Simmons (Contact Author)

Wake Forest University School of Law ( email )

P.O. Box 7206
Winston-Salem, NC 27109
United States
(336) 758-4493 (Phone)

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