Picking Friends from the Crowd: Amicus Participation as Political Symbolism

The modern process of amicus curiae participation is a form of political symbolism reflecting the Supreme Court’s irreconcilable role in American democracy as a quasi-representative policy-making institution. Specifically, this political symbolism reassures the public, particularly vulnerable groups, of the Court’s democratic character. Amicus participation dispels external public criticism that the Court is detached and indifferent to the public, without significantly undermining the Court’s independence. Ultimately, the Court’s institutional legitimacy rests upon the dual pillars of independence and inclusion.

Amicus participation contributes significantly to the latter. Critics of the Court’s current open door policy to amicus participation fear that the lack of additional constraints governing the submission of amicus briefs encourages partisan excess, promotes judicial activism, and unduly burdens the Court. However, the benefits to the Court and its multiple stakeholders outweigh these concerns. This Article builds upon the existing legal literature by (i) exploring amicus participation’s value to multiple stakeholders, not simply the Court and (ii) highlighting the important link between amicus participation, political symbolism, and the Court’s institutional legitimacy.