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Record Number Of Amicus Briefs Filed In Same-Sex-Marriage Cases

The stack of amicus briefs filed as of April 9 reached past the knee of NPR legal affairs intern Anthony Palmer. The briefs cost, on average, an estimated $25,000 to $50,000.

This week's same-sex-marriage cases at the Supreme Court brought in a record number of friend-of-the-court briefs — 148 of them, according to the court, beating the previous record of 136 in the 2013 Obamacare case.

These briefs, known formally by their Latin name, amicus briefs, are filed by groups, individuals, and governments that have an interest in the outcome.

An indicator of how much the numbers have shot up is this fact: The previous record-holder for amicus briefs, the 2013 Obamacare case, beat the earlier record-holder — two affirmative action cases in 2003 — by more than 30 percent.

Truth be told, the justices do not read all of these briefs. They delegate that task to their law clerks, instructing them to select the best of the bunch for the boss to read.

The gay-marriage cases are fairly typical. Here, both sides have supporting briefs from many people and groups — from scholars to religious figures to family law experts. Except that there is considerably more ideological diversity supporting the right to marry for everyone.

But the briefs favoring the bans hold few surprises. They are filed by conservative groups, conservative scholars and politicians, and states that either have bans on gay marriage or had them prior to those bans being struck down by the lower courts.

Those who contend the bans are unconstitutional also are supported by traditional allies, but their amicus briefs include some surprises too.

The business community is making its voice heard even more loudly than before; there's a brief filed by 370 large and small businesses, including many major Fortune 100 companies. There's also a brief filed by law enforcement officers and first responders; a brief filed by 300 Republican officeholders and activists; and a brief filed by former high-ranking civilian Defense Department leaders.

Writing and filing these briefs has become something of a game in modern times, even though they cost on average, an estimated $25,000 to $50,000. When there's a highly controversial issue, various interest groups seem to want to push up the numbers on their side as some sort of an indicator of public support for their position.

In the same-sex-marriage cases, the last count two weeks ago, compiled by professor Ruthann Robson of the City University of New York, was 76 briefs on behalf of those who contend that the bans are unconstitutional, 58 briefs defending the bans as constitutional, and five briefs supporting neither party.

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