Most of us, unless we actually work in the court system or have been personally involved in a case, likely have limited knowledge of its workings. That is understandable, given its complexity, not to mention its foreboding nature. And, that is basically true for any court, at any level, in any jurisdiction, for any issue. Think about how much higher the stakes are when the Supreme Court is involved.
This could be true even if we believed the Court operated in an acceptable manner. Unfortunately, given the extrajudicial power the Supreme Court has gained, the stakes are even higher. Nonetheless, things are the way they are, at least for now. Which means those seeking justice must fight harder than ever to be heard and hope for a successful ruling.
Friend of the Court Briefs
Enter the practice of amicus curiae, Latin for “friend of the court.” Even without being in a courtroom ourselves, we have watched enough TV shows to be familiar with the major players: judge, attorneys, court reporter, bailiff, jury, parties on both sides, etc. Things are a bit different at the appellate level.
There are times when a group is not involved in a particular case but believes it has valuable input to offer. These third parties can do so with an amicus curiae brief. Examples of groups who file such briefs often include the American Civil Liberties Union (ACLU), Electronic Privacy Information Center (EPIC) and government agencies.
Another is the Cato Institute, one of the biggest filers of amicus curiae briefs in the Supreme Court. An amicus brief can either recommend for (or against) a court hearing a case, or offer recommendations on how the court should rule. Cato now receives more requests from petitioners for Supreme Court briefs than it can handle.
Cato institutes strategies deemed most effective in promoting successful outcomes. This has resulted in filing more briefs of a certain type and in more circuit courts of appeal and state supreme courts. They also work with other organizations in their filings.
“Because of effective lawyering and strategic amicus coordination, as well as a Constitution that, interpreted properly, is quite libertarian, the Supreme Court has been one of the few friends in government for advocates of individual liberty. For example, in the 2012-2013 term, the Court sided with Cato 15 times (out of 18 filings), seven of them unanimously.”Another is the Cato Institute, one of the biggest filers of amicus curiae briefs in the Supreme Court. Cato now receives more requests from petitioners for Supreme Court briefs than it can handle. Click To Tweet
Cato Institute Amicus Briefs
Following are select examples of notable Cato amicus briefs. It can be helpful to peruse these to see the consistent thread of promoting the principles of liberty and proper interpretation of the Constitution.
McDonald v. City of Chicago (2009):
“In 2008, in District of Columbia v. Heller, the Supreme Court confirmed what most scholars and a substantial majority of Americans long believed: that the Second Amendment protects an individual right to keep and bear arms. Heller led to a challenge to Chicago’s handgun ban, which raises the question of whether the Fourteenth Amendment protects that right against infringement by state and local governments.
Outcome: The Supreme Court voted 5-4 to extend the right to keep and bear arms to the states, a four-justice plurality via the Due Process Clause and Justice Clarence Thomas, providing the key fifth vote, through the Privileges or Immunities Clause.”
United States v. Jones (2011):
“At the Supreme Court, Cato filed a brief supporting Jones and arguing that the case affords the Court an opportunity to revisit the ‘reasonable expectation of privacy’ test — which has dominated this area of law but is increasingly unworkable.
Outcome: The Supreme Court unanimously ruled against the government, on three different theories.”
Susan B. Anthony List v. Driehaus (2014):
“Believe it or not, it was illegal in Ohio to lie about politicians, for politicians to lie about other politicians, or for politicians to lie about themselves.
Outcome: The Supreme Court unanimously held that SBA List had the right to challenge this censorship. On remand, the lower courts struck down Ohio’s law on First Amendment grounds.”
Read the full piece at Cato at the Supreme Court.