Brief Amicus Curiae, Planned Parenthood of Southeastern Pennsylvania v. Casey


When I was a law clerk, the best advice the judge I worked for gave me was to write every brief for three audiences: the court that will hear the plea, the parties to the case, and, last but not least, the public at large. In making the argument, he emphasized, the facts should speak louder than the law; from the facts, one should be able to discern a just outcome. This advice purportedly applied to all cases and all courts, but in civil rights cases today, a conservative and even hostile federal judiciary often has not played by the rules: judges have been unwilling or unable to listen to the facts. Many judges treat facts as mere distractions, acknowledging them only selectively to serve their own agendas. Advocates are thus challenged to find new ways to force this first audience to open its eyes to the facts, and, if the judges can no longer be reached, to craft arguments directly for the third audience: the court of public opinion.

Drafters of amincus briefs can play a special role in this process because they are free from many of the limitations faced by party attorneys. Counsel for parties must follow the strategy most likely to produce a victory for their clients. In doing so, they may have to retreat to technicalities or focus on only their strongest claims. As a practical matter, they may be unable fully to develop all legal and factual points. Amici have few such limitations; their briefs can emphasize the broad principles they believe to be at stake. Although amici must operate within certain boundaries in order to gain access to the legal process, they have much greater latitude in selecting and presenting their positions. This freedom allows amici to use their own personal experiences and expertise to help party attorneys tell the full story.

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