Monthly Archives: September 2021

The absurdity and dysfunction of the Biden Administration have become so pervasive that its easy to become numb to it all. But some things it does are still so outrageous and inconceivable touching on the very identity of the nation itself that it is worth pausing to take stock of just how far the U.S. has fallen as a country in the short time Joe Biden has occupied the White House.

The latest example comes from the National Archives, the federal entity entrusted with preserving Americas most significant records and documents, including those which established the United States as an independent nation. Images of those original documents which include the Declaration of Independence, the Constitution, and the Bill of Rights are now displayed on the National Archives website with a Harmful Language Alert. This advisory warns the content in the documents may, among other things, be outdated, offensive, racist, and discriminatory.

The alert was placed on the website by the National Archives and Records Administration (NARA), a collection of D.C. bureaucrats who obviously believe they are smarter, more enlightened, and morally superior to those whose genius, vision, and courage led to the formation of the United States itself. NARAs explanation of the alert even suggests they will improve upon the output of the founders and of their predecessor archivists through a process of self-examination and constant revision to root out any hint of what they consider biases, prejudices, and harmful language in their own work product.

Of course, theres nothing wrong with choosing ones words carefully, taking into account a broad range of perspectives. And the individuals who work for NARA are surely entitled, in their private capacities, to hold whatever view of Americas constitutional republic and founding ideals they want.

But its difficult to imagine how a sovereign nation can continue as such if the very government-appointed guardians of its history presume to apply their own political, cultural, and esthetic sensibilities to critique and criticize, in their official capacity, the countrys most fundamental and enduring precepts.

After all, the signature moment in the career of the governments most powerful officers is when they are sworn into office by taking an oath, sometimes with a hand placed on a sacred religious text, promising to defend and uphold the Constitution of the United States.

Its particularly telling that the bureaucrats at NARA believe themselves to be over and above that document, which after all, established the form of government that eventually led to their own existence and that allows such existence to be sustained at the publics expense. This may be the most breathtaking example of arrogance and biting the hand that feeds you the American public has ever seen from any government officials.

In response to a media inquiry about the alert (which reported the advisory was created in July 2021), NARA defended itself by claiming the Harmful Language Alert is not connected to any specific records, but appears at the top of the page while you are using the online National Archives Catalog.

In other words, it seems that NARA is claiming the advisory while still applicable to the nations founding documents wasnt necessarily or exclusively written for those documents and that, really, all of recorded American history could be considered offensive and harmful to right-thinking people.

Thats hardly an improvement, especially coming from the functionaries whose most important official duty is to ensure preservation of the records that literally make America America.

Yet NARA has, however unwittingly, provided Americans with an important public service by illustrating in as clear and profound a way as possible the anti-American rot that infests all levels and departments of the Executive Branch under Biden and the disdain with which it holds Americas highest aspirations.

It doesnt seem like too much of an exaggeration to say their objective appears not so much to run the government as to transform it into something the founders would find unrecognizable, a nation founded not on enduring and universally-applicable principles but on the shifting whims of entrenched elites.

To be sure, such deranged minds must find the ideas in the Declaration of Independence, Constitution, and Bill of Rights deeply offensive, outdated, and harmful. They cannot conceive that there should be any limits to their own designs for government rule or that they should be considered merely part of the undifferentiated mass of common people who make up the U.S. population and subject to the same rules that apply to them.

Yet, ironically, the answer to this dismal state of affairs is still found in those very documents and in the processes they establish for electing and holding government officials accountable and in the fundamental rights none of those officials may transgress.

Patriotic Americans need to take heed and engage in those processes and assert those rights.

Because if the government can haughtily superimpose derogatory warnings over the written records that delineate and limit their own authority and that empower the people they represent, then the day may indeed come when those records wont be worth the parchment on which they are written.

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The Second Amendment Now Comes with Government-Issued Harmful Language Alert - NRA ILA

An NRA instructor described as "the Lefts worst nightmare" helped train thousands of minority women from Detroit on how to safely protect themselves with guns "to ensure theyre never victims."

"The left thinks the Second Amendment wasnt made for people who look like us. They said the same thing during the Jim Crow era too," NRA instructor Rick Ector, who is black, said in a video published by the NRA on Thursday morning.

Ector held a two-day annual event at the end of August where he helped train 4,000 minority women from inner city Detroit on gun safety and use, explaining that Americans deserve to use their Second Amendment rights to protect themselves as gun crimes continue to increase.

PSAKI: GUN CONTROL A 'PRIORITY,' BIDEN 'NOT AFRAID OF STANDING UP' TO THE NRA

"If simply taking guns out of the hands of law-abiding citizens was the answer, Detroit would be the safest place on earth. Instead, its seen a 53% increase in shootings in 2020 alone," Ector said. "In fact, last weekend, Ive trained 4,000 lovely women to ensure theyre never victims. And this isnt about politics for me its about common sense."

Detroit was among cities across the nation last year that saw a sharp increase in shootings, with Motor City notching a 19% increase in homicides in 2020 over 2019, and a 53% increase in nonfatal shootings.

"There's a wave of criminal violence sweeping across all big cities in America, fueled by politicians hellbent on dismantling the police, releasing criminals onto the streets, and failing to enforce the gun laws on the books. Instead of protecting their constituents, these politicians continue to push their extreme gun control agenda," NRA Executive Vice President Wayne LaPierre told Fox News.

"Law-abiding Americans are going out in droves arming themselves and getting trained because they know a gun is the best way to protect themselves and their loved ones."

The women of Detroit who Ector trained echoed LaPierres comments, expressing they are grateful for the courses amid the increase in gun crimes.

BIDEN ANNOUNCES SLATE OF GUN CONTROL ACTIONS, CLAIMS 'PUBLIC HEALTH CRISIS'

"In Detroit, yeah, the crime is increasing and you know, we just need something to protect ourselves," one woman who Ector trained said in the video.

Another woman added: "I just moved out so I'm kind of living on my own, and I sometimes work nights, and I be out at night. No one wants to walk alone at night and feel unprotected. Especially in this society and what happens today."

26 GOP AGS FILE BRIEF IN SUPPORT OF SECOND AMENDMENT, CONCEALED CARRY LAWS AT SUPREME COURT

"Our focus is to push our message out across America to all law-abiding citizens that firearms education and safety are important no matter where you are or who you are," the NRAs second vice president, Retired Lt. Col. Willes K. Lee, added of the two-day event.

As for Ector, he said that after being "brainwashed" that gun ownership was "bad," he one day found himself being robbed at gunpoint in his own driveway. He was able to get the suspects to flee by telling them a "whopping lie" that he had a house full of guns and trained gun users.

"They fled," Hector said. "On that day, I made a promise to myself that I would never look down the barrel or be defenseless ever again, and I would use my experience to help others."

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"Rick is the embodiment of the NRA's spirit of volunteerism that prevails among our millions of members. For years, he has led a crucial and substantive effort to help make Detroit a safer place. We are proud to have Rick as an NRA member, instructor, and member of our Outreach Committee," LaPierre added in his statement.

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NRA instructor trains thousands of inner city women 'to ensure theyre never victims' - Fox News

The United States is a relatively young country, but we have the oldest written national constitution. On this Constitution Day, we honor this incredible document, which has persisted for over two centuries and inspired a host of other constitutions around the world.

Today marks the 234th anniversary of the signing of the Constitution. Our Constitution has endured for so long thanks to a combination of unique features. As I discussed last year, one of the most important features is the way the Constitution divides power both among the three branches of the federal government and between the federal government and the 50 states. Another key feature is its protection of individual rights. Several prominent members of the founding generation believed that no legitimate law of the land could exist without specific, written guarantees of individual liberties. Their conviction eventually inspired the first ten amendments to the Constitution, known as the Bill of Rights.

The Bill of Rights begins with the First Amendment, which enshrines rights that are most fundamental to a free society, among them the freedom of religion and the freedom of speech. By protecting these essential liberties, the First Amendment affirms the right of every citizen to worship God in accordance with his conscience and to freely speak his mind.

The Second Amendment, which recognizes the right of citizens to keep and bear arms, enables the American public to protect the rights spelled out in the First Amendment and in all the other amendments that come after it. As George Mason, one of the principal advocates for a federal bill of rights, explained in 1774, an armed and capable citizenry is necessary to protect our ancient laws and liberty from tyranny. Historys most brutal dictators all rose to power while presiding over unarmed subjects: neither Stalin, nor Hitler, nor Mao, faced significant armed civilian resistance. By guaranteeing American citizens the right to defend themselves, the Second Amendment ensures that our nation will always have a check against despotism, both foreign and domestic.

The next eight amendments in the Bill of Rights list additional protections of individual freedoms. For example, the Fourth Amendment guards the right to be free from unreasonable searches or seizures, and the Eighth Amendment prohibits cruel and unusual punishments. And the last of the original amendments, the 10th, protects both individual citizens and the states in which they live from federal overreach. It accomplishes this by affirming that any powers not granted to the federal government are reserved to the States respectively, or to the people.

These protections of liberty are among the most remarkable in the world. But we must not take them for granted. As history shows us, merely codifying rights on paper is not enough. Libyas constitution, for example, guarantees its citizens numerous human fundamental rights and freedoms, including equal civil and political rights, yet Libya remains plagued by an active slave trade, pervasive governmental corruption, and a litany of other human-rights abuses. North Korea has its own bill of rights, which rings equally hollow.

The reason Americas guarantee of rights has succeeded where others have failed is because our Bill of Rights is reinforced by a strict separation of powers, a federalist structure containing fifty sovereign states, and the liberty-loving spirit of the American people. As long as we hold fast to these principles and maintain our defense of liberty, we will be able to celebrate Constitution Day for centuries to come.

Jay Mitchell is an Associate Justice of the Supreme Court of Alabama

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Constitution Day 2021: Celebrating the Bill of Rights - Yellowhammer News

On Monday, Sept. 20, Dare County Board of Commissioners will hold a public hearing about adding a permitted use to the C-3 commercial zoning district.

The proposed text amendment is to add package distribution and delivery services to the list of permitted uses.

The request comes from United Parcel Service, which is seeking to expand its facilities at 321 Etheridge Road on Roanoke Island. The UPS property is zoned I-1, Industrial-1. The zoning code permits uses in the C-3 commercial district be used in the I-1 district with those uses conforming to the dimensional requirements set out in the C-3 commercial district.

The UPS property is adjacent to the Dare County Regional Airport and surrounded by properties zoned I-1 industrial zoning.

If the use is added to the C-3 district, UPS will be able to access a higher lot coverage of 60%.

The UPS request comes with a favorable action recommendation from the countys planning board.

Look for more planning action later in the year at the Dare County Board of Commissioners meetings.

On Sept. 13, 2021, the countys planning board reviewed a special use permit for Jeffery Aiken to build a commercial fish house and docking facility on Back Creek, 57162 Altona Lane in Hatteras village. The 5,625 square foot building will process, package, distribute and sell seafood to meet the growing demand for sustainably-sourced North Carolina seafood.

Conditions address lighting, driveways, parking and fencing abutting residential use. The hours for the retail sales operation are 7 a.m. to 10 p.m., seven days a week.

The planning board reviewed the conditions set out by staff, found them to reasonable and asked that the conditions be considered by the commissioners.

Joe Thompson, founder of Koru Village in Avon, filed two requests: one amendment concerns food trucks and the other deals with buffer requirements in the travel trailer and campground ordinance.

In 2018, the countys zoning ordinance was amended to allow mobile food units with certain conditions, such as one mobile unit per location on a site with an existing commercial business.

Thompson requests operating multiple food trucks in one location, to create a food court.

The planning board discussed and reviewed staff suggestions to go forward and agreed on the following:

A maximum of five mobile food units on a site with an existing business

Units are to be separated by 10 feet for safety

Portable toilets shall not be used to meet a requirement for restrooms if outside seating is provided.

A maximum of eight outdoor seats for each mobile food truck.

If existing business parking cannot be used, then 10 parking spaces for the food court plus no more than two additional spaces for each unit is required, but can be waived by planning staff.

Hours of operation are 6 a.m. to 11 p.m., seven days a week.

With those determinations, the planning board recommended Board of Commissioners approval for an amendment to the ordinance to permit food truck courts.

A second amendment concerned buffers required by the Travel Trailer and Campground ordinance. The current ordinance permits only vegetative buffers.

Thompson asked for flexibility in an already approved 20-site campground at the Avon Pier. One perimeter adjoins a septic system which will be harmed by growing vegetation. Another other area is between parking for the Avon Pier and the campground sites.

Thompson wants to install a six-foot privacy fence between the pier parking and campground and to leave the septic system area grassed.

The planning board proposed flexibility in buffer standards, permitting six-foot high fencing with a finished side to the public side and permitting vegetation or solid fencing for the buffer. Buffers are not required along estuarine or ocean shorelines.

The planning board finally approved the Roger Hosfelt subdivision, accessed off Lighthouse Court in Hatteras village. Three lots will be developed on 2.48 acres. No parking is allowed on the easement to the subdivision. The submitted plat was revised to address the surveying concerns raised by board member Michael Barr.

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Dare County Planning Board reviews several items; hearing set for commissioners meeting - The Coastland Times | The Coastland Times - The Coastland...

Judge J. Michael Luttig (via YouTube)

Judge J. Michael Luttig was one of the most conservative voices on the federal judiciary. His jurisprudence was rated consistently conservative by an early 2000s study conducted by political scientists, placing him somewhere between Attila the Hun and J. Harvie Wilkinson III. In fact, when John Roberts was ultimately appointed to the Supreme Court, conservatives were none too happy that Bush had overlooked the more reliably conservative Luttig.

Which is all to say that when Luttig, who left the judiciary in 2006, weighs in on a legal issue, hes not coming at it as a firebrand liberal. He puts on his Chick-fil-A bib with two hands just like the rest of them.

Luttig joined with Sidleys Carter Phillips, and former Acting AGs Peter Keisler (also of Sidley), Stuart Gerson (of Epstein Becker & Green), and 13 other prominent legal minds in an amicus brief supporting New Yorks gun regulations in New York State Rifle & Pistol Association Inc. v. Bruen. The brief is, as one might expect from a conservative luminary, drenched in textual and originalist analysis. Part II is just a deep dive into the litany of Founding-era state laws regulating public gun possession putting the lie to the idea that the Second Amendments original public meaning signaled the Framers vision of America resembling a Fortnite arena.

A lot of people forget that the original sources conservative jurists have relied upon for the current gun regime were written over four score and seven years after the Founding. If youre wondering why they settled on a body of not-so-original testimony, its because they really did look into the original public meaning of the Second Amendment and learned that the reality of that legitimate originalist inquiry offended GOP lobbyists.

But the amici remember:

The writings of some 19th-century lower court judges and commentators decades after 1791 do not, and must not be allowed to, supersede the democratic judgments and decisions embodied in these founding era statutory restrictions.

Say what you will about interpreting the Constitution by channeling the ancients, at least its an ethos. For anyone who claims to adhere to an originalist judicial philosophy, this brief shouldnt be controversial and given the history clinic the authors put on should force some frank concessions from conservatives over the meaning of the Second Amendment.

Just kidding, theyre just going to drag the amici for their parents getting killed by gun violence!

Marcia Coyle of the National Law Journal wrote of the brief, also on the brief is former Judge J. Michael Luttig of the U.S. Court of Appeals for the Fourth Circuit. Gun violence touched his family in 1994 when his father, John Luttig, wasfatally shot in a carjacking.

In response, Josh Blackman took to the Volokh Conspiracy to write:

The implication here is that their legal views on the Second Amendment were affected by their personal experiences. On balance, I think this interview reduces the effectiveness of the brief.

Yeah, the fact that his dad was killed is definitely why Virginia and Massachusetts had laws banning public carry in the 1790s. This isnt some Brandeis brief citing gun violence statistics, its an exploration of the original public meaning of the Second Amendment that finds, completely unsurprisingly, that the one pushed by the gun lobby is ahistorical nonsense like another staunch conservative pointed out years ago.

Before we get any further, lets dispense with the inevitable weak sauce response: well, Joe, this isnt really dragging Judge Luttig because of his fathers killing. Yes it is. The post says the Luttigs legal analysis is now suspect because of what happened to his father. How is that anything but an attack on him as a lawyer based on his personal life? An aspersion that his lived experience makes him bad at evaluating the law?

The idea that society is governed by law and not passion means legal arguments beat emotions, not that living outside a hermetic bubble renders all legal analysis void. That gun violence prompted his research doesnt invalidate that research. This is just a sly ad hominem that the only real gun arguments can come from people whove never even tangentially run afoul of a firearm. Which certainly tracks because this is the same movement that thinks the only real voting rights arguments can come from people whove never been denied a ballot and the only real womens health arguments can come from people whove never had a vagina.

But thats all these FedSoc guys have. As the brief explains:

Petitioners do not cite a single item of persuasive contrary founding era evidence that counters the historical support for public-carry restrictions provided by the founding era statutes. They do not cite anyone or any source that contemporaneously opposed or even criticized any founding era statutory restriction as infringing the right to carry. Neither do they cite any proponent or opponent stating that the Second Amendment was codifying a right that would nullify any existing or prior statutory restriction in any state or city. Nor do they cite a state constitutional provision from the founding era that nullified such a restriction. This silence in the face of these founding era proscriptions and limitations confirms that carrying loaded guns in most public places was not a matter of right, but rather was a matter intended by the Framers to be left for debate and decision within the legislative arena.

This isnt even touching the textualist point that the contrary view pushed by the right-wing renders well-regulated superfluous. In any actual legal discussion the gun lobby has bupkis.

But theyve got 6 partisan hacks and thats enough.

Joe Patriceis a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free toemail any tips, questions, or comments. Follow him onTwitterif youre interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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Conservative Drags Right-Wing Legal Legend Because His Dad Was Murdered - Above the Law

To the editor:

Ive worked alongside many New Hampshire legislators throughout my professional career and I know the caliber of person it takes to be a successful and thoughtful state representative.

To make it work in Concord, you need to be determined to better your community, and volunteerism has to come naturally.

Secondly, you must also have the appropriate temperament to bring people together and be a unifier.

Third, and most importantly, you have to be trusted by your constituents, and your word has to be good.

Jodi Nelson embodies these qualities. Shes got a positive attitude, she cares about her neighbors and her community, she is always getting involved around town in different programs and nonprofits, and shes honest with herself and with her colleagues.

These traits are important in the New Hampshire House.

And on the issues, she is the Republican running that I trust to stand up against vaccine mandates and federal overreach, support the Second Amendment, support our small businesses and job creators, stand up against tax-and-spend politicians, fight for all students in Derry, support life, support our veterans and support our emergency responders.

I trust Jodi to be an ally to Gov. Chris Sununu and our Republican majorities in the House and Senate.

I hope your readers join me in supporting Republican Jodi Nelson for state representative in the GOP primary on Oct. 19.

She is the candidate we can trust.

Tyler Clark

Derry

We are making critical coverage of the coronavirus available for free. Please consider subscribing so we can continue to bring you the latest news and information on this developing story.

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Letter: Nelson will be a trusted ally of GOP majorities in Concord - Eagle-Tribune

In recent years, the number of amicus briefs submitted to the Supreme Court, as well as to the lower courts, has increased. Generally, at the beginning of every brief is a "Statement of Interest," which explains why the brief was filed. The statement of interest tends to convey two broad ideas. First, the brief purports to introduce some argument that is different than the arguments presented by the parties. An amicus brief that merely repeats what the parties argued is not very helpful. Second, the brief is signed by people who bring novel perspectives to the case. For example, they have relevant experience or expertise.

We can graph these two related concepts on an x-y axis.

First, the y-axis plots the novelty of the argument, ranging from expected arguments to unexpected arguments. Expected arguments in amicus briefs are already well-developed by the parties, and do not add much value to deliberations. By contrast, unexpected arguments in amicus briefs are not developed by the parties, and offer the Court valuable new ways to think about the case.

Second, the x-axis plots the identity of the signatories. There are many ways to measure this characteristic. To mirror the y-axis, I consider whether those who signed the brief are expected, or unexpected.Expected signatories are those people who are expected to support a specific result. At the other end of the spectrum are unexpected signatories. These are people you would not expect to support a particular side.

This plot separates the types of amicus briefs into four quadrants. Type I briefs present unexpected arguments from unexpected signatories.Type II briefs present unexpected arguments from expected signatories.Type III briefs present expected arguments from expected signatories.Type IVbriefs present expected arguments from unexpected signatories. I also drew two lines that measure usefulness, which I'll explain later.

One way to assess the usefulness of an amicus brief is to measure whether the arguments advanced are expected orunexpected. Briefs at one end of the spectrum simply parrot the sorts of arguments advanced by the parties. Perhaps amici provide a new spin on these arguments, but there is not much new. These briefs are not particularly helpful. Briefs on the other end of the spectrum make novel contributions. For example, scholars who write in a niche area of the law introduce some new argument that was not developed in the litigation. These briefs may be filed in support of neither part. Or, the brief offers an innovative way to read or reconcile older precedents. Most lawyers would boast that their arguments are unexpected. I'm doubtful. To be candid, most amicus briefs do not tread new groundpresent company included. Usually, by the time a case gets to the Supreme Court, the issues have been fully and thoroughly vetted. These sorts of cases are won and lost based on well-honed briefing by the parties. From time to time, these unexpected briefs are written. But they are rare.

More often than not, the signatories on a brief are entirely expected. Scan through the docket on any Supreme Court case. If you look at the party who submitted the brief, you can guesswith a high degree of accuracywhat the brief says. For example, in a case where the plaintiffs challenged a gun control law, there is no surprise if a gun-rights group supports the plaintiffs. Or, in a case where the plaintiffs challenge an abortion law, there is no surprise if an abortion-rights group supports the plaintiffs. These ideologically-sympathetic briefs are predictable. Briefs with expected signatories can still advance unexpected arguments. That metric is plotted on the y-axis. But any such novelty must be assessed againstand even discounted bythe philosophical simpatico between the group and the supported litigant. Expected signatories are not neutral arbiters. They have a vested interest in the outcome of the case.

Briefs with unexpected signatories are far more rare. For such briefs, it is surprising that certain people supported a specific legal position. I can think of four categories of unexpected signatories.

First, there is thestrange-bedfellows brief. Here, people on opposite sides of the ideological spectrum, who tend to see things differently, reach a common consensus on a specific legal issue. These briefs signal that a given case need not be resolved on a strict ideological divide. Often, the Cato Institute and the Constitutional Accountability Center join forces for these sorts of briefs. In McDonald v. Chicago, a cohort of right-of-center and left-of-center scholars filed a joint brief to reinvigorate the Privileges or Immunities Clause. These briefs signal that there is broad support for a position.

Second, there is theagainst-interest brief. Here, people who previously took some position on an issue, now take a position that is against their prior interest. To use a familiar example, my colleagues Jonathan Adler and Ilya Somin filed amicus briefs in the ACA litigation. Both scholars were involved in other Obamacare challenges and did not support the law as a policy matter. But in California v. Texas, they argued that the courts should not rule against the ACA based on severability doctrine. I think these briefs were especially effective because these signatories were unexpected: their current positions stood in principled tension with their prior positions.

Third, there is theformer-government-official brief. Here, the signatories previously served in government, and they argue that current administration is doing something different than they did. These types of submissions are especially effective where government officials who served in both Republican and Democratic administrations agree. These briefs were very prominent during the Trump Administration. For example, in Department of Commerce v. New York, former directors of the Census Bureau filed a brief. They argued that inquiring about citizenship status would yield a lower response rate. Chief Justice Robert favorably cited this brief to show that the Trump Administration failed to justify its policy.

Fourth, there is thewhat-did-you-expect brief. Here, the signatories are expected to take one position based on their reputations, but in fact take the opposite position. In other words, you might think they favor X as a policy matter, but they support ~X as a legal matter. For example, conservatives may be thought to favor gun rights as a policy matter, but they file a brief that urges the Court to uphold gun control laws. Or liberals may be thought to favor abortion rights as a policy matter, but they file a brief that urges the Court to uphold abortion restrictions. These briefs suggest that law and policy can be separated. But these sorts of briefs only work where the signatories have never opined on the issue before. Some conservatives may not favor gun rights. And some liberals may not favor abortion rights. But once the cat is out of the bag, these unexpectedbriefs becomeexpectedbriefs. I recently criticized an amicus brief filed in the New York Second Amendment litigation. My post was regrettably misread. My criticism was narrow. When one of the lead signatories stated that he supported gun control laws well before Heller, without regard to the Second Amendment, the utility of the brief was diminished; an unexpected brief became an expected brief. The usefulness of the brief was diminished along the x-axis, even if the novelty along the y-axis was unchanged.

In an ideal world, the most useful briefs would be Type I and Type II. These submissions provide the Court with unexpected arguments that do not otherwise appear in the briefing. And, in an ideal world, the identity of the signatories should be irrelevant. But we do not live in an ideal world.

Type I briefs are the most useful briefs: unexpected arguments are advanced by unexpected signatories. These positions are treated as more reliable because the signatories bucked conventional wisdom. Perhaps they aligned with cross-ideological groups. This sort of brief would minimize differences and find common ground. Or former government officials repudiated their successorsalways a fraught task. Or, in some cases, a brief is filed in support of neither party. In any event, the Type I brief is the gold standard. Very few briefs fit within this taxonomy.

Type II briefs are the second-most useful briefs. They advance novel arguments that may facilitate deliberations. But there may be reason to doubt the objectivity of the brief because of the identity of the signatories. To use my prior examples, briefs from abortion rights groups who file a brief in an abortion case are not neutral. Ditto for gun rights groups who file a brief in a gun rights case. These groups have a vested stake in a particular outcome. They may be less friends of the Court and more friends of the cause. For Type II briefs to be useful, their novelty must exceed the novelty of a Type I brief. On the plot, I have drawn a "Non-cynical Usefulness" line in red. It illustrates how briefs can be cited in a non-cynical fashion. This line favors unexpected arguments, and gives a preference to those unexpected arguments advanced by unexpected signatories.

I also plotted a "Cynical Usefulness" line in blue, which stretches between Type III briefs to Type I briefs. Why is this line dubbed cynical? Here, the focus is less on the novelty of the arguments, and more on the identity of the signatories. For example, imagine that an unexpected group of signatories puts forward a mediocre brief. The only valuable aspect of the brief is that a cross-ideological group of people agreed on an issue; or that former government officials were willing to criticize the incumbent administration; or people who were thought to favor some policy filed a brief against that interest. With these submissions everything between the statement of interest and the signature block is window dressing. This brief is quite literally judged by its cover. Still, these briefs can be cited in a cynical fashionnot to develop reasoning, but to make an ideological point. I think these missives are especially useful in dissents: see, even people who usually agree with the majority reject the majority's argument! Tu quoque! Of course, the cynical line stretches to Type I briefs. Where useful amici make useful arguments, there is a plus. But that benefit is not necessary.

Finally, Type III briefs are the least useful: the usual suspects round up the usual arguments. These sorts of briefs are not designed to change hearts or minds. At best, they may be useful tools for fundraising or virtue signaling.

***

This taxonomy is not a substitute for studies on citation patterns. In many cases, briefs from expected signatories are far more useful than briefs from unexpected signatories. The ACLU, Cato, CAC, and other groups are frequent players, but routinely submit high quality briefs with novel arguments that aid the deliberations. And I suspect that ideologically-sympathetic Justices favor briefs from certain groups over others. Rather, this taxonomy is designed to asses how the arguments presented in statements of interest affectin an abstract sensethe utility of a brief.

Read more here:
A Taxonomy to Assess the Usefulness of Amicus Briefs - Reason