Is there any special significance of an Amicus brief filed by a member of Congress in a case where they lost that political battle?

September 29th, 2012

What should we make of it when members of Congress file Amicus briefs in cases where their failure to win in the political process resulted in a court case? I am thinking of a recent brief filed by Mitch McConnell and 41 other Senate Republicans challenging President Obama’s recess appointments (and this brief by Speaker Boehner, who would seem to have even less of an interest in recess appointments as a member of the House). This is a battle the Republicans lost in the political realm. So they now turn to the court, and throw their weight behind a constitutional challenge to the appointments.

Does this bother anyone? I’m sure there are examples of Democrats doing this as well.

Maybe I’ll write something about this at some point.

A related question is what should we make of when Vice President Cheney files an Amicus Brief in Heller, disagreeing with his boss and Attorney General?