Saturday, March 29, 2014

There Are Amicus Briefs And Then There Is This One

Amicus briefs are intended to be a way for interested parties to point out relevant aspects of the law to the judges or justices hearing a case. In the Second Amendment realm, the pro-2A amicus briefs come from the NRA, the Second Amendment Foundation, GOA, or other groups or individuals interested in securing the right to keep and bear arms. Conversely, the amicus briefs from those who take a more restrictive view would come from the Brady Campaign, the Law Center to Prevent Gun Violence, and others of their ilk. All of these briefs tend to cite relevant law pro or con to support their arguments. Even the best written of them tend to be, to put it politely, boring.

But what about in other constitutional realms? They, too, tend to be boring. Thus, the brief submitted by the Cato Institute and P. J. O'Rourke in support of the petitioners in the case of Susan B. Anthony List, et al v. Steven Driehaus, et al stands out. It is, frankly, a hoot to read. While ostensibly written by Ilya Shapiro of the Cato Institute, one gets the feeling that it was heavily edited by P. J. O'Rourke. How else could you explain the first footnote?
Pursuant to this Court’s Rule 37.3(a), letters of consent from all parties to the filing of this brief have been submitted to the Clerk. Pursuant to this Court’s Rule 37.6, amici state that this brief was not authored in whole or in part by counsel for any party, and that no person or entity other than amici made a monetary contribution its preparation or submission. Also, amici and their counsel, family members, and pets have all won the Congressional Medal of Honor.
That sets the tone for the rest of the brief which speaks to such things as truthiness. Included are such gems as the following:
  • After all, where would we be without the knowledge that Democrats are pinko-communist flag-burners who want to tax churches and use the money to fund abortions so they can use the fetal stem cells to create pot-smoking lesbian ATF agents who will steal all the guns and invite the UN to take over America?
  • Driehaus voted for Obamacare, which the Susan B. Anthony List said was the equivalent of voting for taxpayer- funded abortion.Amici are unsure how true the allegation is given that the healthcare law seems to change daily, but it certainly isn’t as truthy as calling a mandate a tax.
  • It is thus apparently illegal in Ohio for an outraged member of the public to call a politician a Nazi or a Communist—or a Communist Nazi, for that matter. That is no exaggeration: the law criminalizes a misstatement made in “campaign materials,” which includes “public speeches.”
  • Even in the absence of the First Amendment, no government agency could do a better job policing political honesty than the myriad personalities and entities who expose charlatans, mock liars, lambaste arrogance, and unmask truthiness for a living.
  • Politicians who are caught lying about themselves or others regularly attract more attention from the press than the subject of the original lie. The typical outcome is that the lie or cover up becomes more important than the original accusation or offense. And that dynamic predates smartphones and their latest “apps.” The impeachment of President Clinton was not based on any sexual activities he might have engaged in with Monica Lewinsky, but over the attempt to cover it up. Similarly, President Nixon’s resignation was prompted by his obfuscations rather than his orchestration of a third-rate burglary. And if this Court isn’t yet convinced of this point, amici have but two words more on the subject: Anthony Weiner.
Read the whole thing and make sure you read the footnootes. You just have to wonder who is laughing harder - the law clerks or the justices of the Supreme Court.


  1. That was very entertaining. Bordering hilarious in places. Overall quite funny.

    And I'm no lawyer, nor have I played one on TeeVee.

  2. Nicely done fisking there... And yeah, O'Rourke DEFINITELY had a major hand in that one!

  3. Had to check and see if it was April 1 yet...

  4. yes it is a April 1 and what you know about law?

  5. EmilyJacob: I take your post as a jab. If so, I know more about the law than you know about grammar.

    But that was a cheap shot on my part. Everyone makes mistakes. Even immigration lawyers who offer services to 'displaced' illegals in the USA who want to use some tangential relationship with a citizen to bootstrap themselves into legal residence.

    Not that there is anything wrong with that. It's just that your firm's website is one step below the ambulance chaser billboards I see on the highways. So I don't put you in the category of "attorneys likely to need entry to the Supreme Court Bar".

    Not that it matters. The law is for the people, not for the lawyers. If we cannot read it, then we need to dispense with the guild that ruined it and start anew. The law is not the domain of lawyers, unless you desire it only apply to you.