One Pile Of Briefs Is Worth A Pile Of Opinions
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Not one, but two bombshell amicus briefs supporting same-sex marriage (against California Prop 8) and the overturn of DOMA were filed this last week and the amount of prominent politicians, statesmen, corporations and non-profit organizations is staggering: over 350!
WASHINGTON -- Dozens of prominent Republicans -- including top advisers to former President George W. Bush, four former governors and two members of Congress -- have signed a legal brief arguing that gay people have a constitutional right to marry, a position that amounts to a direct challenge to Speaker John A. Boehner and reflects the civil war in the party since the November election."We are trying to say to the court that we are judicial and political conservatives, and it is consistent with our values and philosophy for you to overturn Proposition 8" - Ken Mehlman.
As of Monday, the list was 75 strong. Among
Meg Whitman, former Prop 8 supporter and candidate for governor of California
Stephen J. Hadley, a Bush national security advisor
Carlos Guteirrez, commerce secretary to Bush
David Stockman, Ronald Regan's first budget director
Deborah Pryce, former House Republican leader
John Huntsman, former Republican Primary Presidential Candidate
Ken Mehlman, former Republican National Committee Chairman
...and three former Republican governors (Whitman - NJ, Weld and Swift - MA)
Afterwards, an amicus brief requesting the overturn of DOMA (Defense Of Marriage Act) was handed to SCOTUS, with signing corporations, organizations and municipalities chiming in for marriage equality. Below is a partial list of the corporations, showing the diversity as well as size (partial A-Z):
A - Adobe Systems, Amazon.com, Apple, Inc.
B - Blue Cross Blue Shield of Massachusetts, Boston Medical Center, Corp.
C- CBS Corporation, Citigroup, Credit Suisse Securities
D - Dana Farber Cancer Institute, Deustche Bank, AG
E - EBay, Inc. Eldercare, Inc.
F - Facebook, Inc., 500BC
G - The Goldman Sachs Group, Google, Inc.
H - Homeward Pet Adoption Center, Horizon Air Industries
I - Intel Corp., Intuit, Inc.
J - Jet Blue Airways, Johnson & Johnson
K - Kimpton Hotel and Restuarant Group, Kinzer Real Estate
L - Levi Strauss & Co., Liberty Mutual Group, Inc.
M - Mars, Inc. Microsoft Corporation, The McGraw-Hill Companies
N - New York Life Insurance Company, NIKE
O - Oracle America, Orbitz Worldwide
P - Pfizer, Inc. Puma Spring Vineyards
Q - Qualcomm, Inc.
R - Ray Holley Communications, Resource Systems Group, Inc.
S - Silicon Valley Progressive Faith Community, Starbucks Corporation
T - Total Home Improvement, Inc. Twitter, Inc.
U - U.S. Balloon Company, Unigo, LLC
V - Viacom, Inc. Vulcan, Inc.
W - Walt Disney Company, Wasserman Media Group,
X - Zerox Corporation
Z - Zynga, Inc.
Also: 41 law firms, 16 professional organizations, and 19 municipalities
NOM de Plume
The National Organization for Marriage (NOM) has often stated that it is not really anti-gay or homophobic, but the disingenuous statements are rendered moot when considering the vehemence with which they attack any corporation or politician going against their views: consider their international boycott of Starbucks and Google (inciting foreign headquarters to be boycott with anti-gay ads). The organization has even come up with "enemies lists" of politicians who support same-sex marriage.
You Gotta Have Amici
NOM also filed its own amicus briefs with SCOTUS, along with Family Research Council and - wait for the shock - Westboro Baptist Church. And while the last is certainly not the kind of group one wants to ever associate with, NOM may need all the help it can get.
Amicus Curiae briefs, (or Friend-Of-The-Court briefs) can carry weight in influencing courts: they can be the conscience of the courts, in fact, because they expound on far-reaching implications of the court's decision. The corporations represented in amici briefs present a picture of what some of corporate America believe. And since Citizens United, courts themselves must consider corporations to have a voice in determining equal rights. In fact, most of the 75 politicians who signed on for the Prop 8 amicus brief cited their support of Citizens United. Irony knows no bounds.
Battle Of The Briefs - It Goes Deeper Than You Think
Whatever the outcome of the decisions, the resulting opinions will carry weight for future court cases, and it is no secret that Supreme Court Justices do not entirely write their own opinions. Their law clerks do:
"While justices are responsible for the substance of their opinions in each case, their clerks usually do the majority of the writing. These clerks follow a code of secrecy about the process of writing each opinion.After oral arguments and the initial vote, the senior justice for the majority opinion chooses a judge (who may be himself or another justice) to be responsible for writing the opinion. Unless this judge is Justice Antonin Scalia, who has often taken on the task of writing opinions himself, the judge will then usually select one of his or her clerks to take the first crack at drafting the opinion. The judge will then discuss with the clerk what the opinion should say and may provide a detailed outline or just a few rough notes. Each justice is allowed to have up to four clerks--bright young law graduates, usually from Ivy League schools and often in their mid-to-late-20s--with the exception of the chief justice, who gets to have five.
S o amicus briefs could, in fact, influence more than just SCOTUS,
but their clerks as well. And don't forget, even dissenting opinions carry
legal weight and are cited in subsequent cases: every jot and tittle written by
the clerks can influence future cases.
Upshot: the decisions - assenting or dissenting - will have teeth for a good time to come. These cases may count as some of the most important civil rights cases in the nation's history.