Friend Of The Court.

I will be up front… I have filed several amicus curiae briefs that was used by the courts/agency. More on them later.

The Supreme Court is too dependent upon its 'friends'
A new Politico investigation spotlights a practice that has been hiding in plain sight for years.
MSNBC
By Steve Vladeck, professor at the University of Texas School of Law
December 9, 2023

The Supreme Court is getting too popular. Increasingly in recent years, new court cases come with a battery of “amici curiae” — Latin for “friends of the court.” An “amicus brief,” the theory goes, can assist in the court’s decision-making process by bringing to the justices’ attention factual or legal points not adequately addressed by the main parties, or by helping to underscore the stakes of the parties’ arguments as they would apply to other cases going forward.

[…]

One of the hallmarks of common-law legal systems like ours is the adversarial testing of disputed factual or legal claims. This idea holds that when lawyers representing both the plaintiff and the defendant have a meaningful opportunity to interrogate claims made by the other side, courts are in the best position to decide what really happened and whose arguments about the legal consequences of those facts are more persuasive. Taking that idea one step further, appellate courts, which are physically and temporally removed from the trial courts, are supposed to defer to the trial court’s assessment of facts unless the trial court committed “clear error.” Thus, by the time a case reaches the Supreme Court, the “facts” are supposed to have been fully developed by the litigation. In that respect, friend of the court briefs are not supposed to substitute for the facts and legal arguments marshaled by the parties; they are supposed to augment them.

For me the agency in case had to see if I had “standing,” a Massachusetts government legal website put it this way… “Any party not directly involved in a case, but that has an interest or opinion about a case pending before the court may file an amicus brief in accordance with Rule 17.”

In the brief that we submitted the state agency said, “Permission was granted to the Connecticut
TransAdvocacy Coalition to appear and file a brief as amicus curiae.”

It turns out, though, that the justices regularly rely upon facts asserted in amicus briefs — which have not gone through the same rigmarole and thus are not nearly as reliable. Consider the results of an academic study by professor Allison Orr Larsen of William & Mary Law School:

1 in every 5 citations to amicus briefs by the Justices in the last 5 years was used to support a factual claim. ... Less than a third of the factual claims credited by the Court were contested by the party briefs. And more than two-thirds of the time, the Justice citing the amicus brief for a fact cites only the amicus brief as authority — not any accompanying study or journal citation from within the brief. This indicates that the Justices are using these briefs as more than a research tool. The briefs themselves are the factual authorities, and the amici are the experts.
PROFESSOR ALLISON ORR LARSEN

In other words, amicus briefs are providing the justices with information that may not be accurate — and which the parties have not had, and usually will not have, a meaningful opportunity to contest.

One of my amicus brief was for the Connecticut Commission on Human Rights and Opportunities the case involved a trans woman who was denied insurance coverage at the time I was the Executive Directors of the Connecticut TransAdvocacy Coalition.

All of that would be problematic enough if it were clear in each case who was behind the amicus brief at issue. Indeed, the justices have been careful in the past to take with a grain of salt factual claims advanced by parties with clear interests in the dispute. In one 2008 decision, for example, the court “decline[d] to rely” on studies that had been funded by the very party invoking them.

Who was behind my amicus curiae was a law student from Harvard who had to write an amicus curiae brief and I was it. We talked on the phone for about a half hour, he wrote it, send it to me for review , made revision and sent it back to me for approval.

But if the court is going to chastise lower courts for relying too heavily on amici, it should also look in the mirror. The more that the justices rely upon factual or legal claims advanced by amici curiae, especially when it is unclear who is funding those claims, the more they risk the appearance — if not the reality — that they are using these briefs the way the Scottish writer Andrew Lang reportedly complained that drunks use lampposts: “for support, rather than illumination.”

My amicus curiae brief can be found on one of the links on the right side of my blog…

Some have observed insurers denying hair removal services for treatment related to gender dysphoria but granting the same for a physical condition, hirsutism. __My name__ Aff., ¶ 11.

Amicus Curiae briefs are not necessarily bad, the same goes for lobbyist. It is how they are used by the courts and legislature. Many of the non-discrimination laws were initially submitted lobbyists and then massaged by the legislators. It you look at the New England states you will see a lot of similarities between them.

P.S. The CHRO found in favor of the trans women.