The Amicus Invasion: How Friends of the Court Became Enemies of the Constitution

There is a peculiar fiction at the heart of modern American jurisprudence, one that has metastasized so quietly that most Americans-and even most lawyers-have stopped noticing it. I am talking about the amicus curiae brief. The friend of the court. And what has happened to it is a perfect case study in how well-intentioned legal tools get captured, distorted, and weaponized-and how the very structure of constitutional government gets hollowed out while nobody is watching.

The amicus brief has deep roots in Anglo-American law. Its original purpose was simple: when a case involved a question that might affect the public interest or the court's own understanding of the law, a disinterested third party-truly a friend of the court-could offer information the parties themselves had not provided. Think of a city explaining its charter to a judge. Think of a guardian ad litem representing an absent child's interests. It was supplemental, not agenda-driven. It was expert, not activist. Let Justice Scalia explain it, as he so often could: the amicus role was to bring to the attention of the court relevant matter not already brought to its attention by the parties. Notice the key phrase: not already brought to its attention. The amicus was there to fill a gap, not to amplify a position. Today, that is a quaint memory.

Consider what has happened in the Supreme Court. In the 1940s, the Court saw roughly one amicus brief per case. By the 1980s, that number was climbing into the double digits. In Obergefell v. Hodges, the same-sex marriage case decided in 2015, the Court received 148 amicus briefs. In NFIB v. Sebelius, the Obamacare case, it was 136. That is not supplemental. That is a political campaign. Today, the Supreme Court routinely receives more than a hundred amicus briefs in major cases. The justices themselves-even the most voracious readers-cannot meaningfully digest that volume. The briefs are filed not to inform, but to signal. They are not arguments; they are list-building exercises, pressure campaigns disguised as legal submissions.

Let me be precise about what this has done. First, it has turned the judiciary into a political battleground. When every interest group, law firm, corporation, ideological nonprofit, trade association, and retired celebrity files a brief, the Court stops being a neutral tribunal deciding a live controversy between two parties. It becomes an arena where coalitions wage proxy warfare. The parties themselves become almost incidental. The real conversation is between the Court and the constellation of amici who want to shape the law. Thomas Sowell would recognize this immediately: the intentions of amicus filers are often noble-they want to advance justice, protect rights, promote good policy. But the consequences are a judiciary increasingly indistinguishable from the legislature. Judges who read fifty briefs from organized interests are subtly but surely being asked to weigh political pressure, not just legal argument.

Second, it undermines the adversarial system. Our legal system rests on the idea that two adversarial parties, each with a concrete stake in the outcome, will present the best possible case for their side. The judge decides based on that clash. But amicus briefs break that model. They introduce interests and arguments that no party has thought to raise-or that no party has standing to raise-and invite the Court to become a general lawgiver rather than a dispute-resolver. Hayek warned about the knowledge problem in central planning. There is a knowledge problem here too: the Court cannot possibly assess the reliability, the incentives, or the real-world effects of all these submissions. The signal is lost in the noise.

Third, it encourages judicial activism. Scalia understood this intimately. When the Court is bombarded with amicus briefs telling it what the right outcome is-and when those briefs come from prestigious institutions, major corporations, and powerful interest groups-the temptation to rule broadly, to legislate from the bench, to treat the Constitution as a living document that can be updated by judicial decree becomes overwhelming. The amicus brief has become the transmission belt for the progressive legal project. It allows activists to bypass the legislature entirely and ask five lawyers in robes to do their work for them.

Here is what almost no one discusses: the amicus explosion is not merely a symptom of an over-politicized judiciary. It is a mechanism by which the judiciary has been captured by the very forces the Founders designed the separation of powers to contain. James Madison warned in Federalist 51 that the structure of government must be arranged so that ambition counteracts ambition. The legislative branch, with its direct democratic accountability, was the engine of lawmaking. The judiciary, with life tenure and limited jurisdiction, was the brake. But amicus briefs allow well-funded, well-organized minorities to wield influence over the judiciary that they cannot exert through the legislature. A group that cannot pass a law can still shape a Supreme Court decision by flooding the Court with expert analysis, threat signals, and moral suasion. This is forum-shopping at the constitutional level.

And here is the irony: the same people who rail against big money in politics and corporate influence in Congress are often the most enthusiastic amicus filers in the courts. They think they are fighting for justice. They are actually dismantling the wall between law and politics. The progressive groups that decry the influence of the Chamber of Commerce on legislation turn around and file amicus briefs in every major case, trying to bend the judiciary to their will. The hypocrisy is breathtaking, but the damage is what matters. The judicial process becomes just another lobbying channel.

What would the Founders say? They would be appalled. The Constitution created a judiciary to decide cases and controversies-actual disputes between actual parties with actual standing. It did not create a super-legislature to receive petitions from every organized faction in the country. John Adams wrote that the judiciary should be independent of the popular will precisely so it could resist transient majorities. But amicus briefs invite precisely the kind of majoritarian pressure the judiciary was meant to withstand. When a hundred groups file briefs demanding a particular outcome, the implicit message is: the weight of organized opinion is against you, Justice. Do the popular thing. That is the antithesis of a constitutional republic.

Consider the practical effect on a justice trying to do his duty. He receives the parties' briefs, which lay out the legal arguments on both sides. He also receives 80 amicus briefs, many of them from organizations he respects, all urging a particular result. The sheer volume creates a presumption that the mainstream of legal and political opinion has coalesced. It takes real fortitude to swim against that current. The amicus brief, originally meant to assist the court, now serves to pressure it. The structure of the game has changed.

Some defenders of the amicus status quo will argue that these briefs provide valuable information. They will say that interest groups have expertise the parties lack. They will point to the occasional amicus brief that genuinely illuminates a technical issue or historical context. I concede that. But the cure has become worse than the disease. The handful of useful briefs are buried in an avalanche of advocacy. The Court could solicit expert input when it needs it, rather than being inundated with uninvited position papers. The burden of sifting through hundreds of submissions falls on the clerks and ultimately on the justices themselves. Time that should be spent on the merits of the case is wasted on triage.

There is another dimension rarely discussed: the amicus industry has created a financial incentive to litigate broadly. Law firms and advocacy organizations file amicus briefs to maintain visibility, to signal to donors that they are active, to build mailing lists. The brief itself becomes a fundraising tool. When you receive an amicus brief from an organization, you are seeing not just a legal argument but a marketing document. The line between advocacy and commerce has vanished.

We also need to talk about the creeping normalization of the practice. When the Supreme Court gets 148 amicus briefs in a case, what message does that send to lower courts? They see the high court treating amicus briefs as routine, even expected. So they begin to accept them more freely. The practice cascades downward. District courts, courts of appeals, even state courts start to see a hundred amicus filings in important cases. The judiciary at every level becomes a target for organized pressure. That is not what the Constitution designed.

I do not propose eliminating amicus briefs. They have a legitimate role. But the Supreme Court should immediately act. First, cap the number of amicus briefs per case-say, no more than ten per side, and only from parties with a demonstrated direct stake or unique expertise not available from the parties. Second, require every amicus to disclose funding sources, so the Court and the public can weigh incentives. Milton Friedman would insist on knowing who pays for the expertise. Third, reject briefs that merely repeat arguments made by the parties. No more me-too amicus campaigns. If you have nothing new to add, stay silent. Fourth, limit amicus participation to issues of constitutional interpretation or technical expertise, not policy preferences. The Court should hear about the original meaning of the Commerce Clause, not about how many people will be harmed if the Court rules a certain way.

The amicus phenomenon is not a bug in the system-it is a feature of a judiciary that has already been transformed into a third legislative chamber. The explosion of amicus briefs tracks the explosion of judicial power. As the Court began to decide more and more of the nation's most divisive social and political questions, more and more groups lined up to have their say. The briefs are the demand; judicial activism is the supply. And so we have a feedback loop: each new sweeping decision encourages more groups to file amicus briefs in the next case, which in turn encourages the Court to see itself as the final arbiter of all things, which produces another sweeping decision. The cycle must be broken.

The Founders gave us a system of limited government, separated powers, and judicial independence. The amicus industry, with its hundreds of briefs per case, is slowly but surely eroding each of those pillars. It is time to tell these friends of the court that the court does not need quite so many friends. Especially when they come bearing agendas, not information. The Constitution has not changed. Our understanding of it must not drift. A republic, if we can keep it, demands that we guard every institutional boundary-including the one between the advocate and the judge.