The Law and the SDGs  |  James Aiken

Befriending the Court: Changing the World Case by Case

An overview of amicus curiae briefs for NGOs and experts.

The courtroom has often been seen as the battleground for key turning points in social development. Public interest litigation cases, often supported by amicus curiae briefs, are crucial tools in holding powerful actors to account and setting valuable legal precedent.

The residents living in informal housing in the Wallacedene area in Cape Town, led by Irene Grootboom in Government of the Republic of South Africa and Others v Grootboom and Others (2001), were forced to move onto vacant private land due to flooding.

Case law, in most jurisdictions, allows the courts to alter and develop the law in line with society’s changing needs and expectations. In considering a legal issue, the court can conclude that a given law or practice is incorrect or misinterpreted. Such cases allow advocacy groups, development organisations and NGOs to highlight and advance their missions by bringing injustices into the public eye and, potentially, restating the law in their favour. South Africa, for example, has a particularly proud history of public interest litigation (as also known as ‘strategic litigation’ or ‘impact litigation’). The Atlantic Philanthropies Foundation – a private foundation, which focuses its funding on health, social, and politically liberal public policy causes in South Africa, among other countries – recognised it as such a key part of their work that they published a guide on Public interest litigation and social change in South Africa: Strategies, tactics and lessons in 2014.

However, it is important to recognise that, whenever public interest litigation cases take place, they are not always successful in translating into real and practical changes on the ground. Even when such cases are successful, they need to be followed up with policy work to secure lasting change. In Government of the Republic of South Africa and Others v Grootboom and Others (2001), for example, the court passed judgment that the government’s housing policy was inconsistent with the constitution. The case was based on the government’s failure to provide housing for residents living in informal housing the Wallacedene area in Cape Town, after they were evicted for erecting their shacks on vacant, privately owned land. Despite the court’s conclusion, the government was not required to make specific changes and, while a new housing policy emerged, Ms Grootboom was still homeless when she passed away in 2008.

Developing Amicus Curiae Briefs to Promote Justice

Amicus curiae briefs take the form of factual information or legal insights, which are submitted to the court by people or organisations who are not party to the case in question but have an interest in the result. These briefs can be used in many forms of litigation, but tend to arise in strategic cases in which the outcome is likely to set an important precedent. Amicus curiae briefs have become especially important in Human Rights cases for example. In Craig v Boren – a 1976 case challenging Oklahoma’s statute, which prohibited the sale of ‘nonintoxicating’ 3.2% beer to men under 21, while women over 18 were allowed to purchase the beer – the American Civil Liberties Union submitted their amicus brief to the court in order to present Ruth Bader Ginsburg’s historic case against gender discrimination.

Using amicus briefs, advocacy groups, development organisations and NGOs can intervene in public interest litigation cases to offer their relevant expertise and assistance. The individuals or organisations submitting a brief do not need to have legal expertise; to have been involved from the beginning of the case; or to have had any previous connection to the litigants. In South Africa, the US and most jurisdictions, amici have an interventionist role, and the briefs they offer can specifically advance arguments on one side. However, it is worth noting that in the UK, the position of amicus has been replaced by an ‘Advocate of the Court’, who is required to be impartial and can only offer impartial advice to the court. The details of this can be found in Practice Direction 3G of the Civil Procedure Rules.

Court systems worldwide are, as Justice Ronan Keane wrote in his Judgment for I v Minister for Justice, Equality and Law Reform, “almost invariably, confined in their consideration of the case to the submissions and other materials … which the parties elect to place before [them]”. When particularly specialist points emerge, the courts might not have the relevant knowledge to consider the facts involved in a case, or its possible implications, in their totality. As such, Justice Keane continues that, “there may be cases in which it would be advantageous to have the written and oral submissions of a party with a bona fide interest in the issue before the court”. By submitting an amicus brief, organisations with relevant expertise can therefore help to ensure that the court is better able to come to a just judgment.

Harnessing the Law to Drive Progress Towards the SDGs

In any jurisdiction, development organisations and NGOs can use amicus briefs to contribute to legal progress across the whole range of the UN’s Sustainable Development Goals (SDGs). To support Equality Now’s mission to promote gender equality (SDG 5) worldwide, A4ID recently connected the organisation with Jennifer MacLeod, a barrister of Brick Court Chambers in London, to produce an amicus curiae brief for X and Y v Russia. The case, which focused on Russia’s domestic violence laws, was being considered by the Committee for UN’s Convention on the Elimination of All Forms of Discrimination against Women.

In an important step for reducing inequality (SDG 10) and improving access to quality education (SDG 4), an amicus curiae brief was submitted to the court by a number of prominent military officers in the affirmative action case of Grutter v. Bollinger. The brief highlighted the importance of having a diverse set of graduates for both military and civilian leadership. The Court held that a student admissions process that favours ‘underrepresented minority groups’ does not violate the US Fourteenth Amendment’s Equal Protection Clause so long as it takes into account other factors evaluated on an individual basis for every applicant. The arguments presented in the amicus brief were specifically referenced as an influencing factor in the majority Judgment authored by Justice O’Connor when ruling in favour of the affirmative action.

Even if the case is unsuccessful, there can still be beneficial results to submitting an amicus brief. Public interest litigation often attracts a lot of attention from the press and public, especially those cases which reach the highest courts. Drafting a well written amicus brief can highlight a specific element of a case and bring it to mainstream attention. If the law demands the court to decide against points highlighted in a brief that there is consensus on, then this could call into question unjust or unfair laws and prompt political change, thus promoting progress towards SDG 16 on Peace, Justice and Strong institutions.

Understanding the Value of Legal Assistance for the Development Sector

The major advantage for NGOs using amicus briefs is that they offer the chance to bring expertise and argument to a courtroom and potentially further their cause, without having to go to the full extent of becoming a party to proceedings. This saves the considerable investment of time and resources involved in hiring a legal team and going through a full court process.

However, it is still important to find legal assistance with drafting briefs. In most jurisdictions, the amicus must provide good justification for why the expertise is required in the case and can be turned away if it does not successfully prove this. Even if the brief is accepted, the courts are under no obligation to listen to the points raised. There were 863 briefs filed in the US Supreme Court in the 2015-16 term, averaging 13 per argued case. A lot of these briefs inevitably fall on the wrong side of the decision, and a vast majority are not referenced in judgments. As such, legal assistance to ensure amicus briefs are properly drafted can be instrumental in encouraging the court to pay attention to the expertise being offered and help achieve the desired impact.

James Aiken