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Caperton's Amici


In this discussion of the Caperton case, I bring some of the amici curiae to center stage—in recognition of their supporting roles. Ordinarily, at this level, highly competent counsel represent both sides, and they tell the Justices what they need to know in deciding the case. In such circumstances, amici—if they appear at all—are likely to add little of substance. In some cases, the parties’ advocates may fail to explore the available arguments, and briefs amici may be the only well-argued guides to decision.

Caperton lies outside both of these patterns. First-rate counsel on both sides, in their briefs and at oral argument, made the best points available, given the facts and the existing law. In my view, however, some of the amici in support of Caperton, et al. provided significant support in persuading the Court to hear the case and to decide for the petitioners. Pondering the weight of the amici in Caperton, one might think, “This couldn’t happen—but it did.” Here I seek to tell how and why it did.