Interview With an Amicus

Posted on June 27, 2025 in Uncategorized

Written by Michelle L. Behan

Amicus Curiae (Latin for "Friend of the Court") refers to a brief that is filed by an interested, non-party to the matter under consideration. This is often done in cases where organizations and entities wish to provide the reviewing court with their point of view, be it social or public policy implications, or special interest agendas. Since its inception in American courts over 200 years ago, the popularity of the amicus curiae brief is only grown.

In the United States Supreme Court, now more than 80% of the matters under consideration are supported or informed by amicus counsel¹. While some amicus briefs merely restate or urge the arguments of the parties, those briefs are often disregarded by the justices², who are, purportedly, more interested in information that discusses potential effects of the decision. The most successful briefs are those that provide insight into both short- and long-range repercussions for citizens and groups not represented by the parties.

From the most recent law school graduate to the most august advocates in the country, amici are lining up to have their voices and views presented to the Supreme Court as well as the highest State courts. Three experienced appellate and amicus attorneys graciously agreed to lend their viewpoints to this article, sharing insights and unexpected takeaways from serving as advisory counsel to the most respected legal minds in the nation.

The Origins and Evolution of the Amicus Curiae

While the term originated in Rome, and purportedly referred to an individual who literally sat in the Court, knew a lot of law, and would opine when asked, the first mention of amicus curiae in US Supreme Court history was a brief by Henry Clay, in the matter of Green v. Biddle, 21 U.S. 1 (1823), a constitutional law question of State sovereignty³. Clay is credited by the late Justice O'Connor as the architect of the amicus curiae use at the Supreme Court. Id.

Since Clay's appearance at the High Court, amicus briefs have become more and more common, increasing in volume and diversity of ideology. The 2019-2020 Supreme Court term had 911 amicus briefs filed, with an average of 16 per argued case⁴. Hotly contested cases, such as Dobbs v. Jackson Women's Health Organization have well over 100 amici⁵.

Since that first brief over 200 years ago, amici are a powerful voice in the Court, permitting special interest groups (such as the National College for DUI Defense) to educate the Court on a variety of topics⁶, including scientific integrity (Smith v. Arizona; N.J. v. Olenowski), broader human factors (Villareal v. Texas), and alternative legal theories (State of Arizona v. Valenzuela).

Preparing the Amicus Brief

The brief usually starts with a phone call or an email: SCOTUS (or a State Supreme Court) has granted review on this issue, and a discussion ensues regarding involvement. For the National College for DUI Defense, the first amicus brief was presented in the matter of Illinois v. Lidster, a SCOTUS case involving DUI checkpoints. Since that time, NCDD has filed briefs in the Supreme Court, as well as the highest courts in New York, Pennsylvania, Ohio, Maryland, Arkansas, Hawaii, North Dakota, Nebraska, Arizona, Minnesota, New Jersey, Florida, Massachusetts, and Michigan. As in Lidster, the College took on other challenges to Fourth Amendment protection, such as Missouri v. McNeely in 2013, Birchfield v. North Dakota in 2016, Mitchell v. Wisconsin in 2019, and Lange v. California in 2021. Additionally, the College addressed the major SCOTUS Confrontation cases involving scientific evidence, beginning with Melendez-Diaz v. Massachusetts in 2009, Bullcoming v. New Mexico in 2011, and, most recently, Smith v. Arizona in 2024.

While some State courts require the agreement of the parties and the leave of the court to participate as amicus, the Supreme Court changed its rules in 2023⁷ and now allows amici to provide briefs without the permission of the parties.

Amici have advantages that the parties to the matter do not possess. For instance, a party might request that the Court give a limited remedy, fearing that a request for an "all or nothing" result would be automatically denied, leaving them with no remedy at all. Amici are free to "swing for the fences," demanding a result that a party to a suit dare not advance. There are disadvantages, as well. Amici are not restricted in content but are encouraged not to merely restate the position of the parties. This requires carefully crafting an argument that advances both the cause and position of the amicus organization but does not retread a path the parties have already walked.

In 2021, a task force was created by then Dean Donald Ramsell for NCDD to provide a clear and cohesive voice for the organization in matters addressing constitutional and other questions that touch on DUI issues as amicus counsel. Since the creation of the task force, NCDD has authored five briefs, including most recently Villareal v. Texas, a 2025 case involving a restriction on overnight communication between client and counsel.

Voices From the Field: The NCDD Amicus Task Force⁸ Speaks Out

Amicus work often takes attorneys far from their home base and provides a unique opportunity to have a direct impact on the result of a case.

Donald Ramsell, former Dean and Board Liaison for the Amicus Committee, has participated in many of the briefs submitted by the College. His first experience with the Supreme Court, however, was not as amicus counsel. He writes, "I was the actual attorney for the Defendant in Illinois v. Lidster. Troy McKinney [of Houston, Texas] and Barry Simons [of Laguna Beach, CA] wrote the amicus brief for the College, and then the three of us conferred with Lenny Stamm [of Greenbelt, Maryland] in Washington, DC for two days preparing me for the argument."

When asked how that experience led him to amicus work, Ramsell added, "It made me realize that the practice of law can allow people to reach the highest court and help influence the most important decisions in our field. Although we write these briefs on a volunteer basis, the time that I devote to the brief, I consider to be the most valuable part of my practice. It is the most personally rewarding activity that I have had a chance to perform since getting a law degree."

Steven Hernandez, co-chair of the NCDD Amicus Committee, spent 40 days serving as amicus counsel for NCDD in the State of New Jersey v. Olenowski, where a New Jersey Special Master (a retired appellate judge) was asked to consider whether the NHTSA Drug Recognition Expert (DRE) protocol was sufficiently reliable to be admitted in court. Ultimately, the Court found the protocol was reliable, but severely restricted its use, forbidding DREs from testifying that the protocol reveals direct impairment, and instead adopting a position that the protocol reveals signs consistent with impairment. Hernandez writes, "Amici were invited to participate as if they represented a client by participating in the examination of State witnesses and calling witnesses of our own. NCDD was the only organization to call a witness. He was on the stand for two days, and his testimony was instrumental in the final outcome, which has led to many acquittals."

John Menzel, task force member from New Jersey, has primarily focused his amicus efforts on behalf of the State Bar of New Jersey in questions relating to the admissibility of scientific evidence, ranging from the admissibility of the results of two different breath-testing instruments to the admissibility of the DRE testimony. He writes, "amicus representation is circumscribed by the interests of the amicus you represent. The amicus focus is policy and practice, the tone is neutral and detached. In representing a party to the proceedings, the tone is much more vigorous, even emotional." He notes that his work has helped preclude tens of thousands of unreliable breath tests.

The Friend We Need, The Outcome We Deserve

In a society where much attention is paid to the rulings of the land's highest Court, the opportunity for the people most affected by the ruling to have a voice in the decision is critical to improving society and advancing access to justice. In the cases listed above, where the NCDD has provided support in nearly 15 different States, as well as more than 10 appearances before the US Supreme Court, a strong, informed, knowledgeable voice has been heard on behalf of those citizens accused of impaired driving. The growing popularity of the amicus brief – not just in DUI cases but in all cases – has raised the level of public discourse related to the implications of the High Court's decisions, and how it impacts our society and culture.

From preserving the 4th Amendment's protection against unreasonable search and seizure (Lidster, McNeely, Birchfield, Valenzuela, Lange) to defending the guarantees of the Confrontation Clause (Melendez-Diaz, Bullcoming, Smith), from the legal framework used to analyze scientific and pseudo-scientific issues (Olenowski) to preserving the most basic tenets of the 6th Amendment (Villareal) members of NCDD and the amicus committee have raised the standards for defending impaired drivers across the country. Although not a party to these lawsuits, the voice and vision of NCDD – justice through knowledge – is consistently heard resonating throughout the most hallowed halls of justice in the land as a result of its amicus work. By protecting the constitutional guarantees afforded by the 4th, 5th, and 6th Amendments, NCDD is not only ensuring the rights of those accused with impaired driving, but the rights of citizens everywhere.

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1. Kearney& Merrill, "The Influence of Amicus Curiae Briefs on the Supreme Court." (2000). Marquette University Law School (https://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1567&context=facpub)
2. Collins, et.Al. "Me Too? An Investigation of Repetition in U.S. Supreme Court Amicus Curiae Briefs" (2013). (https://sites.politicalscience.unt.edu/~pmcollins/CCH%20MPSA%202013.pdf)
3. O'Connor, Sandra Day. (1996). "Henry Clay and the Supreme Court". The Register of the Kentucky Historical Society. 94 (4): 353–362. 
4. Kearney and Collins, supra.
5. Erksine, E. "We Read all the Amicus Briefs in Dobbs so you Don't Have to." SCOTUSblog. (2021). (https://www.scotusblog.com/2021/11/we-read-all-the-amicus-briefs-in-dobbs-so-you-dont-have-to/) Compare the 140 amici in Dobbs with the 23 amici in Roe v. Wade (the case Dobbs overturned).
6. All briefs available at: https://www.ncdd.com/about-the-ncdd/amicus-briefs
7. Howe, A. "Court Drops Consent Requirements for Filing of Amicus Briefs, Makes Other Tweaks to Rules." SCOTUSblog (2022). (https://www.scotusblog.com/2022/12/court-drops-consent-requirement-for-filing-of-amicus-briefs-makes-other-tweaks-to-rules/)
8. The author, also the co-chair of the Amicus Committee for NCDD, has participated in one amicus brief for NCDD to the Arizona Supreme Court, and three NCDD briefs to the Supreme Court of the United States as either counsel of record or editor.