By Lauren DiMartino
In the face of a federal government determined to undo the protections in place for our most vulnerable community members, many of us find ourselves asking: what can we do to help? Without a clear answer, concerned citizens watch the breaking news alerts pop up on their phone, hoping for favorable outcomes in the cases filed to stop the government from causing harm. So far this year, courts are proving to be our best line of defense to protect the nation’s constitutional rights. Although the judicial system is typically viewed as the least democratic branch of our government, there is one way for “we the people” to have their voices heard in the court: by being its friend.
When decisions are appealed, courts typically allow for briefs filed by amici curiae—Latin for “friends of the court.” These briefs allow members of communities—people and organizations—that are interested in the outcome of a case (but not a party to it) to share additional perspectives with the courts. Courts value amicus briefs that address relevant matters not already raised by the parties in the case. For example:
- In a case about the interpretation of a law barring discrimination based on source of income, a group of organizations that work with low-income individuals and/or advocate for economic opportunities and neighborhood integration filed an amicus brief to explain to the court how a ruling against the low-income individual in the case would also harm other people, and how such a ruling would impact efforts to stabilize communities of color. (See Hare v. Brown article).
- When the Supreme Court of the United States heard Kennedy v. Bremerton School District—a case about a former high school football coach whom the District placed on administrative leave after he refused to cease a group-led prayer with the football team at the 50-yard line— we represented eight members of the local community that were impacted by case to help the Court understand how the rights of people beyond the coach’s were affected. (See Kennedy v. Bremerton School District article)
- The U.S. Supreme Court recently heard Food and Drug Administration v. Wages and White Lion Investments, LLC, a case addressing authorization to market new flavored e-cigarette products. Eleven national medical, public health, and community organizations filed an amicus brief, including the American Academy of Family Physicians, Campaign for Tobacco-Free Kids, Louisiana State Medical Society, and Parents Against Vaping E-cigarettes. The brief alerted the court to how harmful e-cigarettes are to youth and that the flavored brands encourage youth to use them.
- Transgendered individuals filed an amicus brief—as a group—in U.S. v. Skrmetti, the Supreme Court case addressing gender-affirming care for transgender youth. The brief shared with the Court how amici, as transgender individuals, lead meaningful lives that were supported by their access to gender-affirming care.
To file an amicus brief, an interested organization or person can either contact the attorney representing the party in the case whose position they’d like to support, or can reach out to attorneys that do appellate work to inquire about hiring them to represent the amici and draft and file the brief. Because the briefs are typically legal in nature—to some extent—and because, depending on the court, filing can be a bit complicated, a lawyer is almost always involved in the drafting process. The amici would then explore with their attorney the perspective they would like to have heard and the strategy to best support the desired outcome.
There have already been considerable wins in stopping harmful policies from going into effect this year—for example: in National Association of Diversity Officers in Higher Education v. Trump, the executive order squashing diversity, equity, and inclusion programs was preliminarily found to be a violation of First Amendment rights; and in Philadelphia Yearly Meeting of the Religious Society of Friends et al. v. Department of Homeland Security et al, a Maryland federal judge barred U.S. Immigration and Customs Enforcement from conducting immigration raids in or near houses of worship of several religious groups on religious exercise grounds. But we can anticipate that the government may appeal those and other decisions (parties typically have 30 days to declare their intent to appeal, the federal government has 60 days). When the appeals are filed, the groups fighting the harms caused by the stopped policies will need to be surrounded by their friends on appeal. If you or your organization have an interested stake in the outcome of a case, consider exploring your options to serve as amici. We’re here to help. Contact us today.
About Lauren DiMartino
Lauren DiMartino represents clients across various areas of civil rights law, including fair housing, education and disability rights, LGBTQ rights, government misconduct, and workplace discrimination. Her practice also includes appeals and commercial litigation. Much of Lauren’s legal experience has centered on education equity, constitutional law, anti-discrimination, and government misconduct. Learn more about Lauren here.
