A liberal group has criticized Justices Samuel Alito and Brett Kavanaugh for meeting last month with an anti-gay-rights activist whose organization had filed a “friend of the court” brief in a major gay-rights case before the U.S. Supreme Court. The group’s director has even called for the justices to recuse themselves.
Brian Brown, the activist who met with the justices and runs the National Organization for Marriage, would appear to hold some seriously wrong beliefs. But the objection to justices meeting with people who have filed such briefs is misconceived. Friends of the court aren’t parties to a litigation in the ordinary sense. They’re independent groups or individuals sharing their views with the justices. There’s no scandal if justices interact with them.
More fundamentally, the justices shouldn’t be shuttered away from the world like cloistered monks and nuns. It’s valuable for them to meet and talk with all kinds of people, including ideological advocates. We shouldn’t want a world where every justice’s schedule is closely scrutinized to find human interactions in which the justices might somehow manage to hear different perspectives and get out of the Supreme Court bubble.
In legal terms, the friend of the court is called “amicus curiae,” or “amicus” for short. An amicus brief is filed by an organization or person who is not one of the litigants in the case. These briefs are supposed to be helpful to the justices or judges deciding a case. The amici can make independent arguments that the parties to the case might not make because, as parties, they are duty-bound to try to win.
In today’s world of Supreme Court litigation, friend of the court briefs tend to be written by advocacy organizations, and often favor one side or another. But that shouldn’t turn the amici into parties. Indeed, the Supreme Court itself (or a lower court) has the power to appoint friend of the court lawyers to advance some perspective that the justices don’t think the parties have represented well enough. That’s about as close a relationship between the court and a nonparty as you can imagine. And it doesn’t violate or even threaten judicial independence.
It’s therefore wrong to think that amici should be treated like parties when it comes to out-of-court encounters with the justices. True, justices are well advised to avoid interacting socially with parties who are litigating cases before them. Justice Antonin Scalia was famously urged to recuse himself from a case involving Vice President Dick Cheney’s executive privilege because the two had been on a duck-hunting trip together. (Scalia declined, explaining among other things that he had never been in the same blind with Cheney.) But similar interaction with friends of the court doesn’t come close to the line.
The objection is also problematic because it mistakenly assumes that we should want justices to be cut off from the world. To the contrary, justices are already too isolated from scholars, activists, advocacy groups, lawyers and, frankly, ordinary people. Unlike politicians, they don’t have constituencies where they must interact with the public. It’s easy for them to be contained in a Supreme Court bubble, cut off from the world where their judgments make a real difference.
Trying to block Supreme Court justices from ordinary meetings and conversations drives them further into isolation. Consider that the same organization that criticized Alito and Kavanaugh also (more quietly) criticized Justice Elena Kagan for speaking at the University of Colorado Law School two weeks after the school had joined an amicus brief in the DACA case.
This criticism is especially preposterous — and it dramatizes how misplaced the whole concern is. Justices’ visits to law schools are a crucial forum not only for students to be exposed to the people who shape the law at the national level, but also for the justices to get a sense of what young people are thinking about the legal future of the country. It’s inconceivable that Kagan could have been in any way improperly affected by speaking at the law school. If by chance she got a sense that University of Colorado Law School was the kind of place where the administration and students supported allowing a group of undocumented immigrants to remain in the U.S., that would be just fine.
If Justices Sonia Sotomayor and Ruth Bader Ginsburg had met with friend of the court gay-rights activists, it’s hard to imagine that liberals would be up in arms. And if conservatives were upset about it, they’d be wrong, too. The justices have jurisprudential and ideological beliefs. It’s fine for them to interact with other people, and to shape their views and beliefs in the context. In fact, it’s exactly what we should want them to do.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg editorial board or Bloomberg LP and its owners.