Retooling the Amicus Machine
102 Va. L. Rev. Online 561 (2016)
18 Pages Posted: 8 Dec 2016
Date Written: December 7, 2016
In their article, “The Amicus Machine,” Professors Allison Orr Larsen and Neal Devins have made a significant addition to the scholarly literature on the increase in the number, and the apparent influence, of amicus curiae briefs filed in the U.S. Supreme Court. They make two important contributions. First, in a survey of lawyers who regularly practice before the Court, they document that many of those lawyers solicit amicus briefs from interest groups and others to be filed on behalf of their clients. So, many of those groups are not coincidentally following the Court but file amicus briefs as a result of an orchestrated campaign or “machine.” Second, Larsen and Devins argue that the Amicus Machine is on balance a good thing, since it provides useful information to the Court about the importance of cases it decides to review, and aids the Court in deciding cases and drafting opinions in the cases it does review.
This Essay takes issue with Larsen and Devins’ normative and largely positive evaluation of the Amicus Machine. While amicus briefs can indeed provide the Court with useful information, the large number of such targeted briefs carries with it the danger of overpoliticizing the Court, undermining the traditional adversarial process, and improperly influencing the Justices themselves. The Essay suggests several ways the Amicus Machine might be retooled, such as making it easier for parties to respond to the amicus briefs, permitting the parties to pick the amicus briefs to be filed, and encouraging the Court to modulate deference doctrines when relying on such briefs.
Keywords: amicus curiae briefs, amicus, amicus briefs, interest groups, politics
JEL Classification: K10, K40, K41
Suggested Citation: Suggested Citation