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Approximately once each Term, the Supreme Court invites the participation of an amicus curiae when one party to a case declines either to participate at all or to advance a particular position before the Court. These amicus invitations have largely escaped both public notice and academic debate. Yet they occur at the intersection of two important recent critiques of the Court: first, the increasing dominance of Supreme Court practice by a small, elite cadre of specialized lawyers; and second, the Court’s status as perhaps the least transparent institution in American public life. This Essay unfolds an important new account, both descriptive and normative, of a largely invisible practice. The findings are at once predictable and surprising: in recent years, amicus invitations have invariably gone to former law clerks of the Justices, but at the same time have increasingly been granted to first-time advocates. These findings, and others, suggest that both peril and promise inhere in the practice of amicus invitation: the practice threatens troubling distributional consequences and potential distortions of legal outcomes, but it also holds out the prospect of more democratically distributed advocacy. More broadly, examining the practice — both as it is currently constituted, and as it might be refined — sheds considerable light on the Court as an institution, a subset of the advocates who appear before it, and the ways institutional design choices can shape the development of the law.


Supreme Court

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Cornell Law Review