Editor’s Note: With millions of Americans tuning in to watch Amy Coney Barrett’s confirmation hearings, it’s a good time to make sure you have your legal jargon down pat. Liberty Nation presents a quick primer on terms you may hear.
Amicus or Amici: When appellate courts, including and especially the Supreme Court, consider a legal issue, outside attorneys and groups, can suggest the court rule a certain way. A so-called “friend of the court” brief, an amicus brief, is simply a legal essay purporting to show a court how that attorney or group believes the issue should be analyzed and decided. It provides a roadmap for the author’s preferred analysis and reasoning, suggesting a certain result.
The National Rifle Association, for instance, would likely file an amicus brief in any Second Amendment case before the Supreme Court. It’s common for issue and advocacy organizations to do so.
Dispositive: A fact that is decisive when answering a question of law. Dispositive facts resolve a legal dispute altogether (once they are proven with necessary certainty).
En Banc: In federal appeals courts, cases are typically heard by three-judge panels. If the court is dealing with a particularly significant legal issue, or when requested by a losing party from a three-judge panel, the full court of all the appeals judges in that circuit may hear the case. This is called en banc review. Recently General Micheal Flynn’s case was heard at the D.C. Circuit Court of Appeals, first as before a three-judge panel, then before the entire court in an en banc review, and with different results.
Precedent: A precedent is simply a prior ruling on the same or similar legal issue. The precedential value of a case is determined by the depth and breadth of its acceptance.
Stare Decisis: A legal maxim, stare decisis or “stand by decided matters,” articulates the legal principle that prior rulings have value in and of themselves because of their nature as prior rulings. Because people need to depend on predictability from the courts to order their affairs, wild swings in judgments are ill-advised for a stable society.
All federal courts are bound to uphold Supreme Court precedent. Stare Decisis means that the Supreme Court should follow its own previous holdings on an issue, absent some truly compelling reason to deviate from what is settled. This is a principle followed by the court generally, not a constitutional provision or law governing the Supreme Court.
State Action Requirement: This is a requirement that government action violates a person’s rights for a violation of the 14th Amendment to be successfully claimed. It becomes important because determining who is a “state actor” means determining who is allowed to be sued. In 2001, for instance, the Supreme Court ruled in Brentwood Academy v. Tennessee Secondary School Athletic Association (TSSAA), that an interscholastic sports association that regulated sports among Tennessee schools could be regarded as a state actor for First Amendment and Due Process purposes. Brentwood was fined for what the TSSAA alleged were recruiting violations for its football team. Because the TSSAA was declared a state actor, Brentwood was able to allege violations of its constitutional rights – rights it didn’t hold against private non-state actions.
Universal Injunction: This term is used to describe an injunction that covers all possible affected parties, rather than what courts typically do, which draws such remedies in the narrowest of fashions. There has been a proliferation of them since Donald Trump became president. Attorney General Bill Barr wrote in an op-ed last year, “During the eight years of the Obama administration, 20 nationwide injunctions were issued while the Trump administration has already faced nearly 40.”
At least one Supreme Court Justice has written on the issue directly. Justice Gorsuch wrote in an order dialing back a universal injunction:
“The real problem here is the increasingly common practice of trial courts ordering relief that transcends the cases before them. Whether framed as injunctions of ‘nationwide,’ ‘universal,’ or ‘cosmic’ scope, these orders share the same basic flaw—they direct how the defendant must act toward persons who are not parties to the case.”
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Read more from Scott D. Cosenza.
