A Historical Perspective on Filings by Foreign Sovereigns at the U.S. Supreme Court: Amici or Inimici Curiae?

Legal scholars have largely ignored the practice of foreign sovereigns filing amicus briefs at the U.S. Supreme Court. This Note builds on a recent study of post-1978 amicus briefs by uncovering the pre-1978 history of this practice. Through a framework of analysis that distinguishes between fact-based and interest-based amicus briefs--that is, between (1) arguments offering legal facts that necessitate a specific conclusion, and (2) arguments relying on economic consequences and foreign and international law--this Note explains the Court's favorable approach to interest-based foreign amici. Interest-based briefs ensure that the Justices consider the vital interests of foreign sovereigns, which often align with those of the United States, by giving a voice to foreign nations. Justices of different judicial philosophies have found it worthwhile to engage with these briefs during the process of carefully balancing competing interests. And they have done so for centuries. Accordingly, foreign amici have played, and continue to play, a positive and important role in Supreme Court litigation. This Note concludes that the Court should continue to actively engage with interest-based foreign amicus briefs, notwithstanding current trends toward isolationism.