To Decide or Not to Decide, That is the Question: The Supreme Court’s Amicus Appointment Practice When the Parties Agree
Lerner Family Associate Dean for Public Interest and Public Service Law; Professorial Lecturer in Law, George Washington University Law School
Read the Issue Brief"Almost every term in the last dozen, the Supreme Court has agreed to hear a case, usually involving the federal government, in which the Court has appointed a lawyer to argue the case as an amicus curiae because the parties agree that the lower court erred.” This lack of adversity presents the problem that there may not be the requisite “case or controversy” for judicial review. In a new ACS Issue Brief, Alan B. Morrison, GW Law Dean for Public Interest & Public Service, evaluates the Court’s practice of appointing amicus curiae to address this problem across four categories of cases. Ultimately, Morrison argues that the Court should “focus on whether to reach the merits of the agreed-on issue,” and “in deciding whether to decide, [should] consider the impact of that choice on non-parties who are likely to be affected by the outcome."