Many of us in the LPS community are interested in impact litigation – indeed, analyzing how to construct an impact lit campaign was a centerpiece of Professor Coughlin’s Law & Public Service class for fellows this past spring. While affirmative litigation remains the focus of organizations like the ACLU, NAACP LDF, and the Brennan Center, amicus brief writing has become an important part of the practice, particularly when seminal cases reach the Supreme Court. These briefs provide the Court with extra-legal arguments and important real-world data that may not have been raised in the trial record.
As part of my 1L winter break pro bono, I was able to work on an amicus brief for the Supreme Court case of Zubik v. Burwell. That case involved a religious non-profit’s challenge to the Affordable Care Act’s contraception mandate, which required that employers provide contraception coverage without cost sharing to their employees. The non-profits argued that this violated their First Amendment rights to free exercise of religion. The lawyers I was working for were writing on behalf of numerous church-state scholars who sided with the government, arguing that providing a religious accommodation impermissibly shifted burdens onto non-adherents, violating the Establishment Clause. (If this has really piqued your interest, you can read the brief here.) Much of the pro-government amicus effort was coordinated by the ACLU, ensuring that the dozens of amicus briefs filed were not duplicative for the court.
While Zubik involved a brokered settlement by the court, likely to avoid a 4-4 split, amicus briefs in a number of other cases have been cited approvingly by the court, providing important facts for the majority opinion. (See, for example, the recent abortion decision Whole Woman’s Health v. Hellerstedt, in which the majority cited to nearly half a dozen amicus briefs showing that the Texas regulation at issue imposed an undue burden on a woman’s access to abortion.)
I found the amicus process to be a great way to get involved with a litigation campaign in law school, even (especially!) as a 1L. A lot of the faculty, particularly in the civil rights/civil liberties domain, work on briefs regularly and can use research support. The topics are usually fairly narrow, since they seek to expand upon the issues that were either not addressed or were only cursorily mentioned in the parties’ briefs, so you can get up to speed on the subject matter fairly quickly. The process is relatively short, so I was able to see the whole brief from beginning to end in just a few months, whereas a full piece of litigation can take years. For future litigators with many different practice/topic interests, the amicus system is a great way to get exposure to a lot of cutting-edge issues in the law. I never expected to work on a reproductive rights filing in the Supreme Court in law school – especially after just one semester here – but I’m so thankful that I did! The experience has really colored my elective choices and gave me an invaluable look to what an impact litigation career (or an impact litigation facet of an academic career) would really look like.
George is a 2L from New Jersey. He graduated from Duke University in 2013 with a degree in Economics, and hopes to become a federal prosecutor after law school. This past summer he interned at the United States Attorney’s Office for the District of New Jersey, and he is a member of the UVA Innocence Project Clinic. In his free time, George likes to play tennis, root for Duke basketball, struggle through the New York Times crossword, and watch stand up comedy.