The Role of Amicus Curiae in Certiorari

In the rare case that the Supreme Court decides to grant a petition for certiorari, the petitioners are often zapped by unknown people sending their briefs under the

guise of something called amicus curiae! This legal Latin term can seem puzzling and even foreboding to some, but it simply translates into ‘friend of the court’.

What actually happens?
Once a petition for writ of certiorari is granted, the Supreme Court requires both parties to file legal briefs in favor of and against the motion. While both the

petitioner and respondent are outlining their arguments in briefs, outside parties who are not directly involved in the action are also permitted to file their briefs.

This is known as amicus brief and will support the outsider’s position. In fact, an amicus brief can even be filed at the petition for writ for certiorari stage itself.

An amicus brief can be filed by a person, group or organization -
•    to support an argument previously made by a party involved in the case.
•    to highlight new arguments other relevant matters that have not yet been raised in the case.
•    to support a particular outcome in the case.
•    to explain outside interest or stake in the particular case.
•    to influence the court’s decision in their favor.
•    to demonstrate to the court the social, political, legal or economic consequence of a certain decision.

Just like the writ petition format Supreme Court, the Supreme Court has formal rules in place governing various aspects of the amicus briefs filed by ‘friends of court’.

•    It can only be filed after obtaining written consent of all parties, or by leave of court granted on motion (except when filed by the United States or an officer or agency thereof, or by a State, Territory, Commonwealth, Possession, city, county or town). The brief can also be filed at the express request of the court.

•    The court also conditionally allows filing an amicus brief with the motion for leave (when a party withholds consent).
•    It should be filed within 30 days after the case is placed on the docket or a response is called for by the court, whichever is later. No extensions are allowed.
•    It should be within 15,000 words and should clearly outline suitable arguments or recommendations for the case to be ruled in a certain way.
•    It should have a green cover and should identify the party supported. Else, it should indicate whether it suggests affirmance or reversal.
•    Akin to writ petition format Supreme Court, this brief must also be in booklet format and 40 copies must be served with the court.
•    A 10-day prior notice of the amicus brief should be given to the respondent.
An amicus brief is considered as an advisory and often proves considerably useful to the court. However, the friends of court are not allowed to participate in the oral arguments (unless there are extraordinary reasons).

If you would like to add anything about amicus curiae, please mention in the comments below.

Common Terms Related to Writ of Certiorari

The United States law allows ordinary litigants to approach the Supreme Court for a review of the judicial decisions of other lower courts. However, there is great confusion among the general public regarding the meaning and use of certiorari petitions.

The following post attempts to clarify the significance and implications of these legal terms so that people can use them logically as befitting their particular circumstances.

Petition for writ of certiorari – In case a litigant (losing party) is dissatisfied with the ruling of a state or federal court – it could be a state court of last resort or the United States court of appeals - he can request the Supreme Court to hear the case once again. For this he has to file a petition with the Supreme Court informing it about the facts of the case, history, questions for review and reasons why the ruling is worthy of judicial review. This petition is known as petition for writ of certiorari.

Writ of certiorari – Every person has the right to file a certiorari petition provided he follows the rules prescribed for writ petition format in Supreme Court. However, this right does not in any way indicate that every petition will be granted by the highest judicial authority in the country. In fact, this is both impracticable and unfeasible.

The decision is left to judicial discretion. There are various conditions following which a petition is granted, beginning with following the appropriate writ petition format in Supreme Court. Indeed, the petition has to adhere to the prescribed format, right down to the type and color of paper to be used (supplied only by Supreme Court Paper). There is also a set deadline for filing the petition after the lower court has issued its judgment.

The Supreme Court Justices study and deliberate on the merits of the petition for writ of certiorari before deciding either way. In the rare case that at least four of the Justices decide that the case has compelling reasons and grant the petition, only then is it formally known as a writ of certiorari.

Certiorari – This is a Latin term meaning ‘to be informed’. It is informally referred to as cert. In literal terms, a certiorari writ is intended to direct a lower court to send a record of the case for further review of judicial errors. However, this is no longer necessary as the current rules require the key proceedings be submitted along with the petition itself. The Supreme Court hears most cases through certiorari only.

Cert. Denied – In case the Supreme Court returns the petition as denied, it means that the case is not deemed worthy of a judicial review. Most petitions are denied without comment and the lower court’s decision continues to hold as final without a review. However, this should not be inferred as indicating that the highest court approves the decision of the lower court! Similarly, if certiorari is granted, it does not automatically indicate that the Justices disagree with the lower court.

Feel free to add further to the above certiorari terms by commenting below.