With every major Supreme Court case, a collection of organizations surfaces determined to be heard. In legal terminology, they are called "friends of the court." In fact, they are more properly called friends of the cause.
Their investment can be substantial: It can cost up to $10,000, or an equivalent investment in weeks of legal research and writing, to prepare and submit their "amicus briefs." The return is uncertain, for they are not formally part of the case, which is argued in briefs submitted by the actual parties in controversy, and they never know whether a single justice will bother to read the brief or whether it will have any impact.
None of this discourages them, however. They point to past amicus briefs that have been cited in some opinions to bolster a justice's argument. And they point to a few occasions (such as the landmark ruling in Gideon vs. Wainwright requiring lawyers for poor defendants) where an amicus brief is quoted dramatically and becomes central to the ultimate disposition of a major case.
So certain to materialize are these briefs that court watchers can distinguish the controversial cases from the boring ones by the amount of shelf-space they require in the court's public information office. The greater the space, the hotter the case.
Even before the court decided on Dec. 1 to review the all-male draft registration, the meetings and consultations among the potential amicus submitters in this controversy guaranteed that the draft case would consume the shelf space befitting such a major issue.
Lawyers representing the challengers of the all-male draft had received numerous calls from groups, primarily women's rights organizations, interested in submitting the briefs. And the groups themselves were embroiled in debate about what, if anything, to say in them.
The organizations favor equality for women. But many also absolutely oppose a peacetime draft program or any draft program. "While they feel very strongly that men and women should be treated equally, they don't want their organizations taking any part in extending something they oppose -- the draft -- of anyone," said Diana Steele, an American Civil Liberties Union attorney in the case who has conferred with many women's rights lawyers about amicus briefs.
Resolving these problems is made easier by the fact that the lawyers are part of a social and professional network that often features the activist equivalent of interlocking directorates. Steele, for example, is a vice president of the Women's Equity Action League, which is coordinating what may become a joint amicus brief in the draft case.
But the first question for all of them is whether to bother at all. To help determine whether they can help the cause, the groups have been consulting the lawyers for the actual parties, like Steele and Donal Weinberg. "I think the briefs could be helpful in this case," Weinberg said. "The case cuts across a lot of social issues and we have only a limited amount of space in our briefs. The amici [the plural of amicus] briefs could underscore interests that don't get emphasized in the main briefs."
For example, Steele said that she, Weinberg and Harvard Prof. Laurence Tribe, the lawyers in the case, are representing a group of men who challenged the draft. Because of this, they can devote little if any space in the formal brief (restricted in length under court rules) to stating the interests of women in the case. Thus she said they may rely on women's amicus briefs to deal with the "off-hand reaction" that exclusion from the draft is "a benefit to women, rather than an act of discrimination. It looks like a benefit but it really makes us second-class citizens."
From the standpoint of the government, which is arguing in support of the all-male draft registration, an amicus brief might help remind justices (who probably need no reminders) of the political sensitivity of drafting women -- of the fact that many Americans say they regard the potential drafting of women as a breach of civilized traditions. A government brief which made this point would be a laughingstock at the court, since arguments about popular sentiment are generally considered irrelevant to the law. But an amicus brief (one is expected from a group led by Phyllis Schlafly) from the outside can make that point.
Another matter of concern to lawyers who are against the all-male draft is the number of amicus briefs that might be submitted on their side. "I would like to try to limit the numbers," said Weinberg. "I'm not interested in a headcount, because the court can pretty quickly see through any attempt to make it look like something is the will of the people.I'm more concerned about what's being said and focusing on a relatively few briefs powerfully making the arguments. Good arguments shouldn't get lost in the shuffle."
Some of the women's groups, for this reason, are preparing one brief which they hope will be endorsed and signed by other organizations -- a joint brief. The Women's Equity Action League, for example, has asked the Georgetown University Law Center's Institute for Public Representation to prepare such a brief.
Two law students and Liz Symonds, a law school graduate at the institute, will prepare the brief in consultation with other lawyers from the women's rights movement. The brief will then be circulated to see if any will join.
Similarly, the United Church of Christ's Board of Homeland Ministries is preparing a brief for circulation among peace-oriented church groups.
The National Organization for Women, on the other hand, decided at its board meeting earlier this month to file its own brief. "It will be different than anybody else's," said NOW spokeswoman Nancy Thompson, and may possibly treat the "psychological effects" of discrimination against women in the military, another subject that would be inappropriate in a formal brief in the case.
"I think that an amicus brief can be important if it enhances the arguments the parties are framing in a case," said Phyllis Segal, director of NOW's Legal Defense Fund. "I don't think they're important as political statements or for supporting an argument in a 'me too' way."
The dilemma faced by the church organization typifies, to some extent, the sort of ideological problems confronting some of these groups as they decide just what to say in their briefs. "If we were to suggest that women should be included in the draft registration when in fact we oppose registration in the first place, we are putting ourselves in an ethical bind. Whatever position we take on that is going to have to be very carefully worded."
Under the court's rules, people wishing to submit the briefs must first seek the consent of both parties in the case. If consent is withheld, which it sometimes is, the justices may give consent on their own, which they usually do.
Sources on both sides of the draft case say they do not expect to withhold consent from any respectable brief.