That’s the question raised in this excellent Wall Street Journal piece by Jess Bravin. He reports that the number of amicus briefs filed with the Supreme Court has risen dramatically in recent years, with many of the briefs coming from opaque interest groups. Current Supreme Court rules only require that an amicus brief disclose whether a party or its lawyer funded the brief, or whether anyone else outside the named party contributed to its preparation. But this leaves plenty of room for little-known groups to file briefs, which may carry outsized influence with the Court.
Senator Sheldon Whitehouse (D-RI) is pushing for greater transparency in amicus briefs. I have criticized Senator Whitehouse routinely on this blog for his often perverse behaviors toward the federal courts, but on this issue we agree: greater transparency would benefit everyone.
Still, the courts would be better off modifying the policy themselves, rather than sitting back and allowing Whitehouse and his compatriots to force a legislative solution.
One thought on “Are Supreme Court amicus briefs posing a transparency problem?”
Transparency is good generally speaking. But not always good. Here, it is definitely meaningless:
This is because, such brief, is transparent per se. Must be based upon legal reasoning. Legal construction. How would it matter then, who is behind what?(even in terms of funding). One should be professional, in order to somehow impress the Justices of the supreme court.
What counts finally, is the transparency of the final ruling. Incorporating anyway the briefs submitted. How would it matter then? Neither money, nor any status or other influence, may divert the court from delivering: clear, coherent, transparent ruling and legal reasoning above all.
On the other hand:
If there is slightest chance, that such demand for transparency, would deter any entity, from pushing for amicus of such, that is very bad result. For it is better, for professional judge, to get as many inputs as possible, and reach so, greater picture.