The role of amicus curiae briefs in litigation before state Supreme Courts has been receiving scholarly attention during the past several years. Some have suggested that some interest groups have begun to see appellate litigation as merely another political arena in which to promote their policy goals.[1] Others have suggested that the explosion of amicus curiae briefs is both unnecessarily burdening the appellate courts and has been responsible for the perception that the opinions coming from those courts are getting longer.

As we’ve shown in earlier posts, whatever trend exists in other appellate courts toward longer opinions has not affected the Illinois Supreme Court, at least to date. One possible contributing factor: there is little tradition in this state of heavy amicus participation at the appellate level. With the Supreme Court’s docket not yet online, it is difficult to be certain whether this is due to a lack of applications for leave to file, because the Court often denies applications, or both.[2]

One of the Court’s most recent written statements on the subject of amicus briefs was in an unpublished 2006 order in Kinkel v. Cingular Wireless, LLC denying an application for leave to file a brief in support of the appellant.

“By definition,” the Court wrote, “an amicus curiae is a friend of the court, not of the parties.” Whether or not to grant leave to file a petition depends on “whether the brief will provide it with ideas, arguments, or insights helpful to resolution of the case that were not addressed by the litigants themselves.” The Court echoes comments by appellate justices in a great many jurisdictions, writing that “Briefs which essentially restate arguments advanced by the litigants are of no benefit to the court or the adversarial process. To the contrary, they are a burden on the court’s time . . .”

The Court endorsed the Seventh Circuit’s criteria for amicus briefs as a “useful guide” in applying the criteria of Supreme Court Rule 345: “(1) when a party is not competently represented or not represented at all; or (2) when the would-be amicus has a direct interest in another case, and the case in which he seeks permission to file an amicus curiae brief may, by operation of stare decisis or res judicata, materially effect that interest; or (3) when the amicus has a unique perspective, or information, that can assist the court beyond the help that the lawyers for parties are able to provide.”

Tomorrow, we’ll examine the yearly mean numbers of amicus briefs in civil cases before the Illinois Supreme Court between 2000 and 2014.

Image courtesy of Flickr by Wendy Seltzer.

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[1]           E.g., Comparato, Amici Curiae and Strategic Behavior in State Supreme Courts.

[2]           The data in tomorrow’s post should be treated with some caution, since it is based on the Court’s identifying amicus curiae in its opinions. It seems unlikely, given how often the Court notes the presence of amici, that such briefs go unremarked upon often. Indeed, the data above may slightly overstate the level of amicus participation. When the Court simply listed a number of different entities, unless the Court made it clear that several had joined in a single brief (or the counsel list reflected one law firm representing multiple entities), each entity was counted separately.