Briefs amicus curiae;

• Jurisdiction: United States

Section 87. Briefs amicus curiae; in general.—As long ago as the early years of the Fourteenth Century, counsel were telling the court that "The judgment to be by you now given will hereafter be an authority in every quare non admisit in England;"¹⁵² and, a little later, the Chief Justice of the Common Bench observed, "By a decision on this avowry we shall make a law throughout all the land."¹⁵³ Even in those distant days, long before any doctrine of precedent had really been formulated,¹⁵⁴ bench and bar thus recognized that a judicial decision affects many more individuals than just the parties to the litigation. And so, over the years* it became customary for those whose rights depended on the outcome of cases pending in courts of last resort to file briefs amicus curiae, in order to protect their own interests."

More recently, with the rise of organizations dedicated to the furtherance of particular principles, such briefs were no longer presented only by parties with similar or identical interests or cases, but became vehicles for propaganda efforts. Far from affording assistance to the judges, on occasion they did not even mention the decisive issue on which the case turned, and on which the court ultimately divided.¹⁵⁵ Instead, their emphasis was on the size and importance of the group represented,¹⁵⁶ or on contemporaneous press comment adverse to the ruling of the court.¹⁵⁷ Certainly there were multiplying signs after 1947 that the brief amicus curiae had become essentially a means designed to exercise extrajudicial pressure on judicial decisions, more decorous than but essentially similar to the picketing of courthouses that Congress thereafter prohibited.¹⁵⁸

Indeed, the presentation of briefs amicus curiae became such a problem in the Supreme Court that in 1949 a more restrictive rule as to such briefs was adopted.¹⁵⁹ For a time the then Solicitor General almost automatically refused his consent to motions for leave to file; this threw a greater burden on the Court; ¹⁶⁰ now, the policy is more liberal; and the present Government policy and the present Supreme Court rule combine to permit parties with interests more immediate than those of mere propaganda to file briefs amicus curiae without undue difficulty.¹⁶¹

It must be borne in mind that on this question there exists a sharp difference of judicial opinion. Mr. Justice Black, dissenting from the adoption of the Supreme Court's new rules in 1954, said, "Most of the cases before this Court...