According +The Huffington Post this morning, several Republicans have changed their minds about same-sex marriage. They are filing an amicus brief to tell the Supreme Court that some conservative Republicans are agreeable to the idea of striking down DOMA. This is, as the site notes, an abrupt turnaround for most of them. Some, in fact, were avid supporters of these laws when they were first proposed.
What changed?
That simple answer is on the second page of the article. These Congressmen and Senators want to keep their day jobs. A significant number of voters - seventy percent - under age 30 are supportive of their LGBT allies and aren't afraid to admit it when asked by political pollsters. As the younger generation comes to voting age and the older generation slowly fades, voter opinions are becoming more liberal.
In fact, if you look at the statistics for the Senate since the turn of the century just over a decade ago, the last time the Republicans had a Senate majority was 2004. In the 2006 election, Republicans and Democrats tied. In the 2008 election, Democrats became the majority. The Democratic party has maintained this majority ever since.
In the House of Representatives, the Republicans are still in the majority. However, the gap has narrowed. Before the 2012 election, the Republicans had 242 seats to the Democrat 193. After the election, the Republicans were down to 234 and the Democrats claimed 201. While not a decisive House victory, the changing opinions are evident.
While not all of this turnaround is due to same-sex marriage - it is just one of many issues facing this country - politicians are forced to admit that "the times, they are a changin.'"
What is an amicus brief? Why does it matter?
The proper name is amicus curiae and it is also referred to as a "Friend of the Court" brief. This allows an individual or special interest group to make an opinion known to the judges, though they are not required to read them or even permit them to be filed. Frequent filers include the American Civil Lliberties Union (ACLU), National Association for the Advancement of Colored Persons (NAACP), and the Electronic Frontier Foundation (EFF). The ACLU files such briefs during civil liberties cases. The NAACP files for civil rights cases that fall under their purview. EFF writes them for digital rights cases.
They do not, in any way, force the judge to decide the case in one way or the other. However, these briefs can remind the person sitting on the bench that there are laws he or she may not have taken into consideration or that the general public has views that coincide or clash with the current law. In the matter of the Supreme Court, the way the public interprets the Constitution is almost as important as precedent. This is because the court has the power to strike down those laws that it deems un-Constitutional, a power referred to as Judicial Review.
One example of Judicial Review is the famous (or, perhaps, infamous) case referred to as Roe v. Wade. (Sometimes, simply referred to as Roe.) The majority of the Court ruled that the mother had a right to terminate her pregnancy before the fetus became viable. An arbitrary cut-off point established in the Court's opinion brief was the end of the first trimester. The Court's written opinion, authored by Blackmun, stated that the:
How many filed amicus briefs for Roe? According to FindLaw, the following parties filed for just this one case:
(Click here to read the FindLaw article on Roe v. Wade.)
That is a lot of people and special interest groups, isn't it?
What happens now?
Oral arguments before the court will begin on the 27th of March. When that phase is over, the Justices will review the law, any amicus briefs that were filed, precedent, and the Constitution. They will debate the topic and then cast a vote. If a decision is reached, they will then file two opinions. The first, will be the opinion of the 'winning' side and is considered the Court opinion. The second will be the minority opinion and is referred to as the dissenting brief.
If the court fails to reach an opinion (i.e. a tie due to abstention or absence), the case is sent back without decision. This does not establish a precedent. It simply indicates that the information was not sufficient to render a verdict. In that case, the decision of the lower courts - if there was one - will stand. In this particular case, it would mean that the law was not removed from the books and a challenge may be filed again at a later date.
Will the Republican amicus brief make a difference?
It may make a large one, depending on how the Court chooses to view it. That a good number of those filing are stating that they were wrong in their support of the law may predispose the court to viewing this law as un-Constitutional. It depends on how their brief is worded, as the Supreme Court is only supposed to exercise this power in regards to whether the law violates the Constitution.
What changed?
That simple answer is on the second page of the article. These Congressmen and Senators want to keep their day jobs. A significant number of voters - seventy percent - under age 30 are supportive of their LGBT allies and aren't afraid to admit it when asked by political pollsters. As the younger generation comes to voting age and the older generation slowly fades, voter opinions are becoming more liberal.
In fact, if you look at the statistics for the Senate since the turn of the century just over a decade ago, the last time the Republicans had a Senate majority was 2004. In the 2006 election, Republicans and Democrats tied. In the 2008 election, Democrats became the majority. The Democratic party has maintained this majority ever since.
In the House of Representatives, the Republicans are still in the majority. However, the gap has narrowed. Before the 2012 election, the Republicans had 242 seats to the Democrat 193. After the election, the Republicans were down to 234 and the Democrats claimed 201. While not a decisive House victory, the changing opinions are evident.
While not all of this turnaround is due to same-sex marriage - it is just one of many issues facing this country - politicians are forced to admit that "the times, they are a changin.'"
What is an amicus brief? Why does it matter?
The proper name is amicus curiae and it is also referred to as a "Friend of the Court" brief. This allows an individual or special interest group to make an opinion known to the judges, though they are not required to read them or even permit them to be filed. Frequent filers include the American Civil Lliberties Union (ACLU), National Association for the Advancement of Colored Persons (NAACP), and the Electronic Frontier Foundation (EFF). The ACLU files such briefs during civil liberties cases. The NAACP files for civil rights cases that fall under their purview. EFF writes them for digital rights cases.
They do not, in any way, force the judge to decide the case in one way or the other. However, these briefs can remind the person sitting on the bench that there are laws he or she may not have taken into consideration or that the general public has views that coincide or clash with the current law. In the matter of the Supreme Court, the way the public interprets the Constitution is almost as important as precedent. This is because the court has the power to strike down those laws that it deems un-Constitutional, a power referred to as Judicial Review.
One example of Judicial Review is the famous (or, perhaps, infamous) case referred to as Roe v. Wade. (Sometimes, simply referred to as Roe.) The majority of the Court ruled that the mother had a right to terminate her pregnancy before the fetus became viable. An arbitrary cut-off point established in the Court's opinion brief was the end of the first trimester. The Court's written opinion, authored by Blackmun, stated that the:
"right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the district court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."
How many filed amicus briefs for Roe? According to FindLaw, the following parties filed for just this one case:
Briefs of amici curiae were filed by Gary K. Nelson, Attorney General of Arizona, Robert K. Killian, Attorney General of Connecticut, Ed W. Hancock, Attorney General of Kentucky, Clarence A. H. Meyer, Attorney General of Nebraska, and Vernon B. Romney, Attorney General of Utah; by Joseph P. Witherspoon, Jr., for the Association of Texas Diocesan Attorneys; by Charles E. Rice for Americans United for Life; by Eugene J. McMahon for Women for the Unborn et al.; by Carol Ryan for the American College of Obstetricians and Gynecologists et al.; by Dennis J. Horan, Jerome A. Frazel, Jr., Thomas M. Crisham, and Dolores V. Horan for Certain Physicians, Professors and Fellows of the American College of Obstetrics and Gynecology; by Harriet F. Pilpel, Nancy F. Wechsler, and Frederic S. Nathan for Planned Parenthood Federation of America, Inc., et al.; by Alan F. Charles for the National Legal Program on Health Problems of the Poor et al.; by Marttie L. Thompson for State Communities Aid Assn.; by [410 U.S. 113, 116] Alfred L. Scanlan, Martin J. Flynn, and Robert M. Byrn for the National Right to Life Committee; by Helen L. Buttenwieser for the American Ethical Union et al.; by Norma G. Zarky for the American Association of University Women et al.; by Nancy Stearns for New Women Lawyers et al.; by the California Committee to Legalize Abortion et al.; and by Robert E. Dunne for Robert L. Sassone.
(Click here to read the FindLaw article on Roe v. Wade.)
That is a lot of people and special interest groups, isn't it?
What happens now?
Oral arguments before the court will begin on the 27th of March. When that phase is over, the Justices will review the law, any amicus briefs that were filed, precedent, and the Constitution. They will debate the topic and then cast a vote. If a decision is reached, they will then file two opinions. The first, will be the opinion of the 'winning' side and is considered the Court opinion. The second will be the minority opinion and is referred to as the dissenting brief.
If the court fails to reach an opinion (i.e. a tie due to abstention or absence), the case is sent back without decision. This does not establish a precedent. It simply indicates that the information was not sufficient to render a verdict. In that case, the decision of the lower courts - if there was one - will stand. In this particular case, it would mean that the law was not removed from the books and a challenge may be filed again at a later date.
Will the Republican amicus brief make a difference?
It may make a large one, depending on how the Court chooses to view it. That a good number of those filing are stating that they were wrong in their support of the law may predispose the court to viewing this law as un-Constitutional. It depends on how their brief is worded, as the Supreme Court is only supposed to exercise this power in regards to whether the law violates the Constitution.
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