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Mr. Ed, Friend of the Court:

Some people have faulted the ACLU for failing to file friend-of-the-court briefs (also known as "amicus briefs") in certain free speech cases -- this, they've argued, shows that the ACLU doesn't really support free speech, at least of the sort involved in those lawsuits (for instance, religious speech). I've blogged before about why this is wrong, but I'd like to elaborate on this further, because it might help people understand the proper role of amicus briefs.

When are groups supposed to file amicus briefs? Not just when the case involves something that the group cares about; rather, they're generally supposed to do it only if they have something valuable to add that the parties and that other amici aren't already saying. This is what my two favorite public interest law firms, the libertarian Institute for Justice and the conservative-libertarian Center for Individual Rights (which in turn credits IJ), call the "Mr. Ed rule." Here's Scott Bullock from IJ:

We have long followed what we call the "Mr. Ed" rule on amicus briefs. . . . Mr. Ed (the talking horse) only spoke "when he had something to say." And that is our approach. We don't do amicus briefs unless we feel like we can bring a unique perspective, voice, or insight into the case. . . .

And here's Michael Rosman of CIR:

[W]e prefer to be involved in a case by representing parties. Accordingly, our official policy is that we file amicus briefs infrequently, and only if we believe that we have something to say that is of interest and that will not be said by the parties to the litigation. . . .

That's (1) a sensible allocation of the group's resources; amicus briefs take time and effort to produce, and most public interest organizations are already stretched pretty thin. But (2) it's also how courts ask groups to behave.

That's made explicit in Rule 37.1 of the U.S. Supreme Court Rules:

An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.

Rule 29 of the federal Rules of Appellate Procedure, which applies to the federal courts of appeals, likewise states:

The motion [for leave to file an amicus brief] must be accompanied by the proposed brief and state . . . the reason why an amicus brief is desirable and why the matters asserted are relevant to the disposition of the case.

The Advisory Committee notes accompanying the rule make clear that "relevance" refers to the same standard as that given in Supreme Court Rule 37.1. ("The former rule only required the motion to identify the applicant's interest and to generally state the reasons why an amicus brief is desirable. The amended rule additionally requires that the motion state the relevance of the matters asserted to the disposition of the case. As Sup. Ct. R. 37.1 states: 'An amicus curiae brief which brings relevant matter to the attention of the Court that has not already been brought to its attention by the parties is of considerable help to the Court. An amicus curiae brief which does not serve this purpose simply burdens the staff and facilities of the Court and its filing is not favored.' . . .")

Now sometimes groups do file briefs just because they feel a burning need to participate in a case -- perhaps because they want to impress donors, or because they think their very name might help influence the judges. But that's not what courts really want them to do, and it's both expensive and possibly counterproductive (since judges might get annoyed when they feel that a group is wasting the judge's time by filing briefs that add nothing really new). It also wastes the time of lawyers on the other side, who have to read the briefs closely and figure out whether they indeed have anything to say.

So keep that in mind when you're criticizing a group for not filing an amicus brief. If you can find evidence that, for instance, the ACLU failed to file an amicus brief in a religious speech case because it thought religious speech shouldn't be protected, you can certainly fault the ACLU for having such a mistaken view. But the ACLU's failure to file an amicus brief does not by itself reveal the ACLU's substantive views: It may well be that Mr. Ed just didn't think he had anything really helpful to say.

Medis:
If the ACLU does not file an amicus brief in the C.C.R. suit over the NSA surveillance program, that clearly means they support the program, right?

You're trying to use logic and facts again, Professor Volokh--I see little hope that it will work.
1.17.2006 5:45pm
Anonymous Poster (mail):
Isn't there an empirical way to look at this, rather than saying that any one decision by the ACLU matters little (which is a true proposition)? That is to say, if the ACLU never or rarely files an amicus brief in a religious speech case, but always or usually files an amicus brief in a political speech case, wouldn't that at least tell us where the ACLU's speech priorities lie? While it may not establish any kind of hostility to freedom of speech in religious cases, it may indicate indifference, which might tell us that the ACLU does in fact favor one type of civil liberty over another (probably a proposition that is not entirely controversial). I think hostility toward the ACLU is often misplaced (it is what it is, and it does mostly good in the aggregate), but placing side by side ACLU's actions with its words could be helpful in either helping a potential donor to weigh their choice or to spur action from the ACLU in certain areas.
1.17.2006 6:17pm
Eugene Volokh (www):
Anonymous Poster: This page points to many cases in which the ACLU intervened on behalf of religious speakers or religious practitioners. I don't know of any site breaking down amicus briefs (as opposed to all interventions) by the type of speech involved. If you find one, please let me know; but please also keep in mind the points in this post -- whether the ACLU intervened or not tells us little unless we also have a sense of how valuable its intervention would have been. For that, you'd have to figure out whether the existing parties and amici have already covered the important arguments adequately; it's certainly possible that this would happen more often in religious speech cases, where other high-quality litigators (such as the Becket Fund) are likely to intervene, than in other cases.
1.17.2006 6:30pm
David A. Smith (mail):
Apropos of the Mister Ed rule, I quote from the show's theme music:

"Go right to the source and ask the horse
He'll give you the answer that you endorse
He's always on a steady course
Talk to Mister Ed."

A sound rule for prospective amici, perhaps?
1.17.2006 6:38pm
anon) (mail):
Wouldn't it just be easier to scream that the ACLU is bad based on one's political beliefs than to refer to all those boring rules of the court and such?

Seriously though it is worth noting that smaller advocacy organizations are more beholden to donors, and some amicus briefs are basically written at the request of the donor. Some write briefs specifically to attract donors. (I was going to name names, but I think I should hold off for now). The ACLU, to its credit, has a fairly large and steady donor base, and so it doesn't need to whore itself out to get specific donations.
1.17.2006 6:56pm
JLR (mail) (www):
Filing amicus briefs that are repetitive are

not what courts really want [groups] to do, and it's both expensive and possibly counterproductive (since judges might get annoyed when they feel that a group is wasting the judge's time by filing briefs that add nothing really new). It also wastes the time of lawyers on the other side, who have to read the briefs closely and figure out whether they indeed have anything to say.


Granting that the purpose of the original post is to explain why the ACLU has not intervened in certain civil liberties cases, the above statement by Prof. Volokh raises a question. What happens when third party groups file amicus briefs that, from a pragmatic perspective, hurt the side that the amicus brief is supporting? There certainly is no rule against an amicus proffering a new and different legal theory that is less viable than the rationale of the petitioner/respondent. However, given the contours of the actual legal question, that new and different legal theory may be less palatable on its face, and might very well hurt the petitioner/respondent via something akin to "guilt by association." I can think of at least one amicus brief in a relatively recent case that would seem to fit this description of a harmful amicus.

US Supreme Court Rules 37.2 and 37.3 do explain that amicus briefs need the consent of all parties (and if consent is not granted, a motion for leave to file may be presented before the Court). I do not know how these rules work out in practice, however. Would judges be annoyed not just at repetitive amicus briefs, but also at amicus briefs that argue for a position that is less palatable than the main brief for the petitioner/respondent? Thank you.
1.17.2006 7:01pm
Porkchop (mail):
The "Mister Ed" rule -- hmm, not a bad policy for blog comment posters, either. :-)
1.17.2006 7:16pm
Ira B. Matetsky (mail):
And some appellate courts have very different attitudes from others regarding their receptivity to amicus briefs. The Court of Appeals for the First Circuit, for example, sometimes goes so far as to issue an order specifically inviting "interested amici" to file briefs in a given case (usually when rehearing en banc is granted). On the other hand, the Seventh Circuit (or at least some judges thereof) has a much more limited view of when such briefs are useful. See, e.g.: http://www.lawsource.com/also/posner.htm
1.17.2006 7:26pm
Splunge (mail):
The "Mister Ed" rule -- hmm, not a bad policy for blog comment posters, either....

"A thread is not closed when everything has been said, but rather only when everything has been said by everybody."

...paraphrasing the Rule of Adjournment for meetings.
1.17.2006 7:35pm
Kent Scheidegger (mail) (www):
Thanks for your statement of the Mister Ed rule. We have long followed it at the Criminal Justice Legal Foundation but have not expressed it so succinctly.

I trust we are not one of the groups that "anon" refers to, but for the record we have never filed a brief at the request of a donor.

Although no one decision not to file means much, I think it is revealing to look over the long course of events and see who an organization supports and who it does not.

Here is a challenge for VC readers. Which of the following U.S. Supreme Court criminal law briefs is oldest?

a) The last brief supporting the prosecution by the ACLU.
b) The last brief supporting the defendant by CJLF.
c) The last brief supporting the prosecution by the American Bar Association.
1.17.2006 8:00pm
WB:
There's a really Judge Posner opinion essentially striking a bunch of amicus briefs for failing to follow the Mr. Ed rule. It comes to mind for me every time the subject of amicus briefs arises.

Voices for Choices v. Illinois Bell Tel. Co., 339 F.3d 542 (7th Cir. 2003) (in chambers)
1.17.2006 8:21pm
WB:
I meant to say "really good Judge Posner opinion," not "really Judge Posner opinion," though at least in some people's minds they're the same thing.
1.17.2006 8:22pm
WB:
To hazard a guess at Mr. Scheidegger's question, my recollection is that (c) doesn't exist. (a), I imagine, either doesn't exist, or is several decades old.
1.17.2006 8:24pm
CCMCornell (mail):
Is there a general opinion as to whether the ACLU usually follows a conservative amicus brief policy like the Mr. Ed policy?

Also, how does an organization like the ACLU or IJ come to a decision as to whether it has something different to offer in an amicus brief? How does they know what the party will present in argument or what other amici briefs will be given? I guess this is sort of a practical question of the workings of the law community.

The "Mister Ed" rule -- hmm, not a bad policy for blog comment posters, either. :-)

I've seen this rule before (though, not in name) in relation to Internet postings. It's one of the rules for the karma system at Slashdot. It's also a principle on many web forums formed to stop "thread crapping."
1.17.2006 9:04pm
Eugene Volokh (www):
CCMCornell: Remember that ACLU litigation decisions are generally made by each chapter; I doubt there's an "ACLU policy," though there may be an ACLU of New Jersey policy, an ACLU of Wyoming policy, and so on.
1.17.2006 9:16pm
Duncan Frissell (mail):
Early in the "Oughts", I called the New Jersey ACLU with a question about a domain name disparagement case. The voice mail announcement said, more or less, "The New Jersey ACLU is concentrating all of its resources on discriminatory stops of African American and Hispanic motorists by the New Jersey State Police. If you have another problem, we can't help you. If you anr an African American or Hispanic motorist please hit 1..."
1.17.2006 9:31pm
apu (mail):
Duncan Frissell's comment is absurd. The ACLU-NJ, like many ACLU chapters, makes good use of cooperating counsel in order to help on a broad range of activities at all times. I was one of those cooperating counsel on several cases in the first half of this decade and never heard that message. Nor did I work on the discriminatory stop issues -- or anything similar. (People may not support all of the ACLU-NJ's positions, which is fair enough, but to suggest that it abandoned other important civil rights issues in lone pursuit of the motorist-stop issue is just wrong.)
1.17.2006 9:42pm
arbitraryaardvark (mail) (www):
My local aclu says they get 1000 phone calls per case they take. Just as it's not a statement on the merits when the supreme court doesn't take a case (they take 100 +/- out of 10,000), it's not a statement on the merits when the aclu doesn't take a case. By looking at a broad sample what cases they do take, or file amici in, you can spot some trends.
1.17.2006 10:39pm
Justin (mail):
The ACLU acts as a shield against government power. On what POSSIBLE grounds would they file an amicus curiae with the Supreme Court supporting the government in a prosecution, unless it was a prosecution of a government official acting in their official capacity?

Likewise, the ABA only deals with lawyer-related issues, which would make me believe their criminal law prosecution useful difficult to imagine.

Meanwhile, the CJLF protects the rights of "Christians" broadly. One could imagine all sorts of incidents in which they would support criminal defendants (if they were ignoring federal law that required seperation of church and state, dealing with 1st amendment issues and anti-abortion protesters, etc.
1.17.2006 10:40pm
arbitraryaardvark (mail) (www):
An amicus doesn't require standing, article III or otherwise. But do the rules permit a horse, by counsel, to participate as an amicus? Perhaps the general rule, if any, wouldn't apply to a talking horse, who could dictate an affidavit in support of the brief.
1.17.2006 10:42pm
JLR (mail) (www):
This thread, and the blog in general, have been enjoyable to read. If it's all right I'd like to repeat the question I posed in my above post, which I suppose got buried in the post's length.

Would judges be annoyed not just at repetitive amicus briefs, but also at amicus briefs that argue for a position that is less palatable than the one posed by the main brief for the petitioner/respondent? (and by "less palatable," I am referring to novel yet less compelling legal rationales that conflict with the theory of the case posed by the petitioner/respondent.)

Thank you.
1.17.2006 10:57pm
anon) (mail):
I think there are very rare circumstances where someone could legitimately file an amicus brief on behalf of the government. 1) The government because it is allegedly democratic has the best interests of the people in mind, and will (or should) incorporate them into their briefs; 2) the government has plenty of resources; and 3) in most cases where an individual's interests are state in government litigation there is some right of intervention. Now, of course there are exceptions. Councilman was one of the rare ones: the government likes to put people in jail for tapping email without authorization, and the crazy hippies don't want people reading their email. These interests were dynamically opposed, because, it turns out, the government thinks it can read email without a warrant, and really just wanted to put Bradford Councilman in jail, and the email privacy types don't particular care if he goes to jail or not.

Now, of course there are some whorehouses of public interest law firms out there that file amicus briefs because they think it will get them attention or a job or attract donors.
1.17.2006 11:04pm
Mary Katherine Day-Petrano (mail):
Mr. Volokh, I hope you will forgive me for hijacking this thread for a moment ... who knows the real name of Mr. Ed?
1.17.2006 11:06pm
CharleyCarp (mail):
Hey, why single out the ACLU for position taking by omission? Does Mr. Cramer (for instance) file an amicus brief in support of the government every prosecution of an alleged pedophile in the US? Has Mr. Cramer (for instance) ever filed an amicus brief in support of the prosecution in such a case? If not, can't one say he thus supports pedophilia?

I just picked that crime at random. If the answer is that he has, then my next question is whether Mr. Cramer has filed an amicus brief in every carjacking case. Surely he drives a car. Or at least rides in one. But he statnds (by omission) with the carjackers! Hypocrite!

A pretty stupid game, isn't it.
1.18.2006 12:12am
Kent Scheidegger (mail) (www):
Justin apparently has us confused with someone else. CJLF does not in any sense exist to protect the rights of Christians as opposed to people of other religions. We exist to protect the rights of victims of crime and all law-abiding people.

The ABA does not limit itself to lawyer issues. It files in a much broader range of cases than that. For an example of a true lawyer issue, though, consider this. Suppose you had a client engaged extensively in litigation of a particular issue, and new legislation was enacted on that issue. You had a sound argument to make on your client's behalf in cases pending in several courts. One day, you find that a federal district judge has issued an injunction forbidding you to make that argument, not just in his court, not just in his district, but in any case before any judge in any district. Shouldn't the ABA be purple with rage at such an atrocious attack on the duty of competent advocacy? In Ashmus v. Calderon, the ABA was AWOL. Why? Because they were capital cases, and the attorney was the Attorney General of California.

It would, of course, be unusual for the ACLU to support the prosecution, which is essential to the point to be made when the question I posed is answered.
1.18.2006 1:45am
Kent Scheidegger (mail) (www):
In answer to JLR, I don't think judges are annoyed by alternate theories. If they find them less palatable, they just ignore them. On a multijudge court, different judges may react differently. For example, in Montana v. Egelhoff, four justices agreed with Montana and Justice Ginsburg adopted our (CJLF's) position. Montana didn't mind. Split-decision wins are less than optimum, but they beat the heck out of losing.

On the other hand, the day Teague v. Lane was decided, the AAG of Illinois was annoyed the court decided on my retroactivity theory, rather than answering the Sixth Amendment question. Justice Brennan was livid. Oh well, you can't please everybody.
1.18.2006 1:56am
Public_Defender:
Anon), yes, judges may be interested in a "less palatable" theory than the litigants propose. In fact, that is probably one of the most useful kind of amicus brief.

When I represent a client, I want to frame the issue so that the court can let my client win without helping a bunch of other convicted rapists, murderers, etc. Therefore, it's in my client's interest for me to propose as narrow a ruling as possible.

But an amicus (like the ACLU) can push the court to create a broader rule. I've filed an amicus in state court that did exactly that. I peaked the interest of one of the judges on my state's high court, but the rest decided to give only the narrow ruling that allowed that particular defendant (and a small class like him) to win.

In state courts, another reason amicus briefs are filed is if the leaders in the local legal community doubt the capabilities of the individual lawyer representing a defendant.

After leaving an oral argument in my state's high court, a prosecutor from an office that had nothing to do with the case talked to me. He said that the prosecutor on the case clearly didn't care about winning (the lower court had ruled for her on an issue she did not raise or really agree with).

The prosecutor I was speaking with said that said if he had known how little the other prosecutor cared about the case, he would have filed an amicus just so his side's views were more forcefully presented. (I won the case, with an opinion written by a very conservative member of the court. The lawyer I had spoken with was furious.)
1.18.2006 7:32am
A. Nonymous (mail):
Also, please keep in mind that in at least one episode of Lassie, "Lassie and the Calf" (05/13/62), Lassie was admitted as a "friend of the court" to bark testimony.

Granted, this was a trial level proceeding, so is not exactly on point, but surely if the collie can get standing....
1.18.2006 8:50am
Some Guy (mail):
Well, the "Mr. Ed rule" certainly makes sense...even though it's total B.S.

Come one, do you really believe that anyone here buys the argument that the ACLU is a non-partisan group of civil rights-minded lawyers and the only reason they just happen to file amicus mostly in cases with wacky, far-left claims is that those are the ones that "need" the ACLU's help? If you keep peddling crap like that, don't be surprised that non-lefty lawyers have stopped taking supporters of the ACLU seriously.
1.18.2006 9:07am
Public_Defender:
If you keep peddling crap like that, don't be surprised that non-lefty lawyers have stopped taking supporters of the ACLU seriously.
It seems the opposite is the problem. People take the ACLU too seriously, as if the organization were some kind of hidden government with secret police to enforce Its Will.

True, with a few exceptions, the ACLU takes a liberal view of civil liberties, but so what? Other groups are free to take conservative views of civil liberties.

But back to the topic. As a criminal defense lawyer, I generally would not want the ACLU to file an amicus in my clients' cases. Given how conservative the courts are, I don't want the courts to think that a vote for my client is the liberal vote. I want the conservative judges to my client's case as a conservative follow-the-bleeping-rules case.

That brings up another reason the ACLU might not file an amicus. The litigants may not want the ACLU's help.
1.18.2006 9:16am
Juan Notwithstanding the Volokh:
Kent,

What is the answer to your question? In some senses it is a trick question, because an organization devoted to "civil liberties" is not very likely to support the prosecution. That is, it would be a rare case that taking the side of prosecuting and incarcerating someone will further an interest in "civil liberties."

Similarly, it would be unusual that a "victim's rights" group like the CJLF would support a defendant. I can imaigine a case where a defendant might also be a victim, however, so it seems less implausible than the ACLU/prosecution case.

As for the ABA, if you are at all familiar with the nightmare of red tape that it takes to convince the ABA to get involved in any case, you would never say they were "AWOL" on any issue. To get authorization from the ABA to author an amicus brief, it takes a committed person who is willing to not only write the brief for free, but to do so without any assurance that it will ever be filed.
1.18.2006 11:00am
dweeb:
Your reasoning still assumes that, in all the free speech cases, there is coincidentally only something relevant for the ACLU to add in the leftist ones. This is just like the local affiliate argument and all the others you've put forth - they require one to accept the improbable notion that all these supposedly ideologically neutral factors you cite serendipitously always work out in favor of liberal speech and never in favor of conservative speech. Usually accptance of such a proposition is a cue to offer to sell the Brooklyn Bridge.

A valid rebuttal to claims that the ACLU is hypocritically biased would be citations of cases where they've defended conservative speech. The continued use of arguments dependent on improbable coincidences seems to indicate you can't find any such cases.
1.18.2006 12:58pm
Mary Katherine Day-Petrano (mail):
All this discussion of "the Mr. Ed rule," and no one knows his real name. I learned that in Horselaw 101, it is "Bamboo Harvester," and Mr. Ed a/k/a Bamboo Harvester was a real lawyer, great at oral argument.
1.18.2006 1:07pm
Kent Scheidegger (mail) (www):
Here is the answer.

The ACLU filed an amicus brief supporting the prosecution in Wisconsin v. Mitchell, 508 U.S. 476 (1993), regarding the constitutionality of hate crime laws.

CJLF filed a brief supporting the defendant in Powers v. Ohio, 499 U.S. 400 (1991), regarding racially discriminatory peremptory challenges (coincidentally the subject of SCOTUS decision today).

As far as I can determine, the last ABA brief supporting the prosecution was in Morrison v. Olson, 487 U.S. 654 (1988), on the independent counsel law. That was a highly politicized prosecution of a conservative Reagan Administration official and future Solicitor General. I have not found any case in which the ABA supported a regular prosecutor.

So here is the point. Even organizations such as the ACLU and CJLF, which unabashedly support one viewpoint against the other, cross over occasionally. Yet an organization which claims to represent the whole bar invariably supports one side against the other whenever it takes a stand.

Returning, finally, to the original question of the thread, can we infer anything from the complete one-sidedness of briefs over a long period? Yes, I think so. The ABA's claim of being a broad umbrella representing the whole bar is a facade. In matters of criminal law, their voice is invariably in harmony with the defense side, and that result is so predictable that it should not be given any additional weight.

Answering Juan's comment, I am not concerned with what goes on inside the black box. What comes out is a single sideband, and that establishes my point. It is the ABA's own responsibility to fix its internals, but they can't because they remain in denial that they have a problem.
1.18.2006 1:40pm
The Original TS (mail):
Kent, as for when the last time the ACLU filed a brief in support of the prosecution, I'm not sure it's ever happened. There have been times, though, when the ACLU publicly supported the prosecution's position. IIRC, the ACLU (at least the LA chapter) publicly supported the federal civil rights case brought by the feds against the Rodney King defendants after the state acquital. It was quite controversial because the ACLU in general is opposed to the "different sovereign" theory on philosophical grounds. I'm sure there have been other cases where the ACLU has supported the government position when the government was acting to defend civil rights.

There's a practical point regarding amicus briefs that hasn't been raised here. Precisely because of the "Mr. Ed" rule, a good amicus brief usually needs a bit of coordination with at least one of the parties. I suspect that the ACLU, not being all that popular with some religious and conservative groups, might find this difficult to achieve.
1.18.2006 1:49pm
The Original TS (mail):
Oops! Guess I should refresh more often!
1.18.2006 1:51pm
Kent Scheidegger (mail) (www):
TS, you are right that being an amicus requires coordination with the parties, usually the party supported. Their cooperativeness varies. Once in a great while, we have to deal with a jerk who has never been to the Supreme Court before, sees the case as his moment in the spotlight, and thinks any other briefs on his side somehow steal a part of his limelight. The ethics of being more concerned with your own magic moment than your client's case are dubious.

Fortunately, most attorneys recognize that amici on their side are a benefit and cooperate accordingly. Experienced Supreme Court advocates are also reasonably cooperative and courteous with opposing amici. Rookies are often a problem, trying to figure out some way to manipulate the consent/motion requirement to their advantage. There isn't any.

In most cases, parties will send amici on their own side copies of the briefs at the previous level, which usually give enough indication of what they will argue to avoid too much overlap. The Supreme Court does make it difficult, though, by requiring parties' and amici's briefs on the same day. In the Court of Appeals, we get a 7 day window.
1.18.2006 2:58pm
Juan Notwithstanding the Volokh:
Kent,

I agree with you that the process for getting the ABA involved as amicus is broken, but the frequency of Supreme Court amicus briefs in favor of the prosecution does not mean the ABA is biased against the prosecutor.

First of all, you cited a case where the ABA did get involved on the prosecution's side, which is only 3 years older than when your own organization last crossed sides. The difference between 15 years and 18 years is negligible in this context. Second, the ABA has a crappy process, but it is equally available to all members of the ABA, regardless of their ideological orientation. It could be that there aren't any committed souls who attempt to get the organization to take the prosecution's side in an appropriate case, or that those who do are more easily daunted by the process than those on the defendant's side. Without the data concerning what goes into the "black box," it is impossible to come to a conclusion about what comes out.
1.18.2006 3:14pm
Richard Aubrey (mail):
Anybody see any amicus briefs filed for the apparent motivation of being able to say, "we were involved" but that added nothing?
1.18.2006 4:53pm
Kent Scheidegger (mail) (www):
Yes, Richard, it happens all the time. The Court has a rule against it, but organizations that do not follow the "Mister Ed" rule do it anyway.

Juan, I don't think you are getting my point, but there is no need to belabor it any longer.
1.18.2006 5:00pm
First Time Poster:
So, without having actually read the opinions cited above ;), it seems that they support the theory that the ACLU is actually acting based on a political agenda rather than a general desire to support "civil rights"--in other words that the ACLU chooses its positions based on the parties and the political outcome it wishes to achieve rather than on a philosophically principled view of the concept of "civil liberties."

Evidence of this would be the fact that they supported federal prosecution against the Rodney King defendants in contrast to their normal opposition to the "different sovereign" theory and that they supported the prosecution regarding the constitutionality of hate crime laws in contrast to their normal opposition to ???.

Strong (but not conclusive) evidence of a political leaning (rather than a consistent philosophically principled stand) would be if the ACLU offered a brief in one case and then declined to offer a brief in a different case that involved very similar principles but where the parties/outcome were different (such as, for example, supporting the free speech rights of a black power group but not a Nazi group under very similar circumstances). In a situation such as this, Professor Volokh's point about expertise/Mr. Ed principle/"something new to offer" would seem to be irrelevant since the ACLU clearly has expertise/"something to offer" in the issue (since it offered a brief on one side) and would presumably be declining to file a brief because of its desire to see certain outcomes, rather than in principled support of civil liberties. In other words, it is unlikely that they would have "something new to offer" in one case but not the other (similar) one. The only case where this would be possible is if there is really consistently a complete absence of voices supporting one political position but not the other (in that case, the ACLU really could consistently fall on one political side and still claim to be acting neutrally in defense of "civil rights" as an abstract principle).

This is only a problem, of course, if the ACLU is claiming to be a neutral defender of "civil liberties" and is accepting contributions under this pretext, but is instead favoring certain groups/outcomes over others irregardless of the "principle" of it.

Can anyone comment further on other sets of ACLU cases where the "principles" are the same but the ACLU's position appears to differ based on the parties involved?
1.19.2006 1:13am
Ohio Lawyer:
The Ohio chapter of the ACLU filed an amicus for the prosecutor in an Ohio case that discusses whether Ohio's domestic violence law violates the new Ohio anti-gay-marriage constitutional amendment. Defense attorneys argue that the statute is unconstitutional because it treats unmarried partners the same as married partners, which the amendment appears to prohibit.

The Ohio ACLU argued that the anti-gay marriage amendment should be interpreted narrowly. Both the ACLU and the Prosecutor won in the state court of appeals. The opinion is here.
1.19.2006 10:08am
The Original TS (mail):
First Time Poster, first, you need to understand that the ACLU is not a monolithic entity. Many people talk about the ACLU as if it were a vast, highly-disciplined army marching in philosophical lock-step. Nothing could be further from the truth. The ACLU, given its prominence in American legal and political life, is absurdly decentralized. Local affiliates take pretty much whatever cases they want to. There is an enormous difference, too, in local affiliates. The ACLU in NY and LA tend to be more "liberal" whereas many affiliates focus on core free speech issues. I always find it amusing that so many people have enormous agro for the ACLU based on the more high-profile controversial cases it takes on. These same folks would probably find themselves in perfect agreement, however, with the vast majority of the work most local affiliates do.

supporting the free speech rights of a black power group but not a Nazi group under very similar circumstances

Heh. Google up "Skokie" and "ACLU"

Granted Skokie was a long time ago, but it's still an incident that the ACLU takes great pride in.
1.19.2006 12:52pm
dweeb:
"The ACLU, given its prominence in American legal and political life, is absurdly decentralized. Local affiliates take pretty much whatever cases they want to."

And lemmings don't pass around a memo that, tomorrow, we're all marching into the sea, yet they all head in the same direction. The effect is the same - all those affiliates, acting on their own, haven't managed to assemble a convincing set of cases where they've defended right wing speech.

"Granted Skokie was a long time ago, but it's still an incident that the ACLU takes great pride in."

Fascism is, despite popular misconception, a creature of the Left.
1.20.2006 1:33pm
The Orginal TS (mail):
And lemmings don't pass around a memo that, tomorrow, we're all marching into the sea, yet they all head in the same direction.

You do know, don't you, that lemmings don't actually do this and that the whole thing was made up by Disney?

http://www.snopes.com/disney/films/lemmings.htm

But I did very much appreciate the irony of trying to support one urban myth by referencing another urban myth!
1.20.2006 2:23pm