See also: Amicus curiae briefAn
amicus curiae is, at least
semantically, a "friend of the court." The
amicus is not a
party to the case, but a
person,
organisation, or
government agency that wishes to express a view on an issue arising in a particular case. Sometimes, an
amicus will be invited
aboard by one of the parties to the case; in other cases, the court may decide to hear the opinion of an
amicus on an issue not addressed by either of the parties.
The
rôle of the
amicus is twofold
1. On the one hand, an
amicus generally supports one side or the other, and makes an argument that is openly in favour of one of the parties (the cover of an
amicus curiae brief usually reads "BRIEF FOR
AMICUS CURIAE XXX IN SUPPORT OF APPELLANT" or somesuch). On the other, the
interest of the
amicus curiae (spelled out in a section of the
brief entitled "INTEREST OF
AMICUS CURIAE) goes beyond the specific case in which the
amicus brief is submitted. An
amicus is arguing not so much for the party it is supporting as for a specific
proposition of law. The plaintiff or defendant generally wants to win the case on whatever
grounds are available; the
amicus seeks to have the plaintiff or defendant win the case
on the specific grounds favoured by the amicus. This means that the
amicus will generally tend to argue in terms of the
big picture - the
policy implications of a decision on the grounds advanced by one party or the other, the
effect of the decision on the development of the
law, and other more wide-reaching concerns. This is often
invaluable to a court, which must not only reach the appropriate decision in the case before it, but also make good
precedent for the
future.
Sometimes, the court itself will decide it needs to hear from a
third party commentator on a particular issue. This does not happen often, but it has occurred in cases in which the parties are in
agreement on a particular issue that the court considers important enough to
resolve. While many things can be
disposed of on the
basis of
concessions made by one party or the other, important legal or
constitutional issues must be decided by the court
on the merits if they arise. Thus, a court will
occasionally invite an
individual or organisation to make an argument that neither party is submitting. The best recent example of this is the
U.S. Supreme Court's
Dickerson v. United States, 530 US 428 (2000). In
Dickerson, the
petitioner, Dickerson, had been convicted using
statements he gave to the
police in
custody without having been read his
Miranda rights. A
federal statute (18
USC § 3501) authorised the
admission of any statements, provided they were made "voluntarily," even if the
Miranda warnings had not been given. The Court was faced with the question of whether the
Miranda warnings were
constitutionally required. Neither the U.S. government nor (obviously) Dickerson argued that the
Constitution did not require
Miranda warnings. The Court, however, felt that the issue was important enough that it should be argued even though neither party disputed it. So, the Justices invited a
law professor - who had apparently been waiting his entire life to do this - to argue before the Court that
Miranda warnings could be dispensed with without violating the Constitution
2.
1 It should be noted that an amicus is not suing on behalf of a client. An amicus curiae merely expresses an opinion on someone else's lawsuit.
2 Ultimately, the Court held that the Constitution required Miranda warnings after all.