The United States Supreme Court and federal appeals courts decide important cases impacting the constitutional rights of everyone, the responsibilities of businesses toward consumers and the relationship between government and citizens. States such as Indiana have a stake in these questions, but how do states make their legal arguments known to the Supreme Court if they are not plaintiffs or defendants in the lawsuit the Court hears?
The answer is that Indiana and other states file amicus briefs, also called friend-of-the-court briefs, with the Supreme Court and federal appellate courts. If not a party to the lawsuit, a state can submit an amicus brief, a thoroughly researched legal document explaining the state’s interest in the case and legal argument for the judges to consider as they formulate their ruling.
As state government’s lawyer, I don’t make the laws but I have an obligation to defend the laws passed by the people’s elected representatives in the Legislature. My office defends Indiana statutes from current legal challenges in court, but we also must anticipate future challenges. By participating in amicus briefs in other states’ lawsuits, we both sharpen Indiana’s legal arguments in preparation for our own later cases and ensure that our views are understood by the judges who create the precedents that may guide – or even control – our future cases. Filing amicus briefs to explain a state’s legal interests is intrinsic to the job description of a state attorney general.
Cooperating with AG’s offices in other states, my office since January 2009 has authored or co-authored 29 amicus briefs that other states joined, or signed on to; and we joined another 113 briefs that other states authored. Of the briefs Indiana participated in at the U.S. Supreme Court, 34 were filed at the “cert petition” stage, where justices consider whether to accept an appeal from a lower court; and another 79 were filed at the “merits” stage after the Court accepted a case. The rest were filed with other courts.