Against Congressional Briefs

I have occasionally criticized judges and Justices who use their official positions to try to influence the legislative process. In this post I want to criticize the mirror image: Legislators who sign on to “congressional briefs” in the Supreme Court, such as the one David Kopel links to below, designed to influence the outcome of cases.

Amicus briefs written on behalf of sitting legislators strike me as inappropriate. Of course, legislators can influence the judicial process in many ways. They write the legislation that the courts interpret; they control the rules that govern judicial hearings; they can control much of the Court’s docket; and they even control how many Justices are on the Supreme Court. Further, legislators take an oath to uphold the Constitution, and they have an independent (albeit sporadically exercised) duty to ensure that legislation they enact passes constitutional muster.

At the same time, the filing of briefs to try to influence individual cases seems to me to enter inappropriately into the core of the judicial process. Deciding cases isn’t Congress’s job, and it’s unseemly and inappropriate for legislators to step in and try to influence how the Justices exercise “the judicial Power of the United States” that the Constitution vests in the Supreme Court. It doesn’t help that the Congressional briefs tend to be substantively weak. In general, they just express whatever view is politically popular among that legislator’s constituency at the time the brief is filed. But in most cases, they add nothing helpful to the judicial process. (I’m not saying that’s true with Clement’s brief, parts of which strike me as what a Bush DOJ might have filed if it still had been around. Just that it’s true with most of them.)

To be sure, the courts can just ignore the briefs, just like legislators can ignore judicial opinions designed to influence legislation. Certainly there are bigger problems in the world. Still, if it were up to me legislators would stop filing these briefs out of respect for the separation of powers.

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