Columns, Opinions

Cardoso ’19: Friend of the court, foe of Trumpism

By
Staff Columnist
Tuesday, February 28, 2017

The response to President Trump’s recent executive immigration order was swift and harsh, eliciting opposition from a motley crew of tech corporations, European diplomats and American national security experts, among many others. On Feb. 13, Brown, along with 16 other universities, joined the fray by submitting an amicus curiae brief — a legal document submitted by a non-litigant to an appellate court — in opposition to the ban. And as it should — the ban affects several students and disrupts the University’s efforts to attract scholars from around the world.

Of course, the pertinent question here is not the wisdom of Brown’s objection to the ban — it is clearly justified in seeking to protect members of our community from the dangerous and inept policy experimentation of the nascent Trump administration. No, instead, the astute observer might ask whether the brief will actually accomplish anything. Wouldn’t it be inappropriate for the University to wade so deep into the political mire if its participation amounted to little more than grandstanding?

In fact, I don’t think so. Amicus briefs are, indeed, of marginal efficacy when it comes to court decisions. Research suggests that while amicus briefs can influence the decisions of the courts, individual briefs themselves often have no substantial impact on the outcome of a case, and what impact they do have can be counteracted by more briefs on behalf of the other litigant. Additionally, not all briefs are made equally. Data suggests that some amici are more influential than others, and Brown (or any university for that matter) does not sit very high on the ladder. Presumably, on hot button political issues where the ideological composition of the court is on full display, amicus briefs are even less useful in influencing the outcome. Of course, the arguments provided by amici might eventually contribute to the reasoning of the court’s opinion, but not necessarily whether the case will swing in favor of either party.

No, the metric by which we should assess the University’s decision to file a brief shouldn’t strictly be whether or not it can expect success in the court — because frankly, the decision won’t be influenced one way or the other by Brown’s brief alone — but rather, whether it can protect the members of our community in the long term. And by taking a public position on the issue, it can. Indeed, taking a public position is more than grandstanding — when powerful institutions like Brown and the other amici that filed briefs aggregate their influence and stake out a position, they are able to influence public opinion. The public begins to focus on widespread opposition among tech companies, foreign leaders and universities, which shapes how the public views the issue, and ultimately, this places pressure on the administration to reconsider its policy (at least in theory).

The other dimension of the objection to Brown filing an amicus brief — that universities, like celebrities, should keep their mouths shut about politics — is not only an arbitrary construction meant to stifle the dialogue, but is the exact opposite of what we should expect from those with privilege in society. The notion that universities exist in some political vacuum and that complaints about their involvement in political issues is anything more than partisan bickering is basically nonsense. Influential institutions like Brown have an obligation to insert themselves right into the eye of the political maelstrom to protect their students, faculty and — of equal importance — their principles. Even if the logic of shaping public opinion is unconvincing after the most basic precepts of political behavior seem to have been suspended in the past two years, at the very least, by filing an amicus brief, the University shows solidarity with its affected community members in the most politically engaged way it can.

Ultimately, while Brown’s amicus brief will likely be inconsequential in shaping the court’s opinion, its decision to enter the political conversation on behalf of its students is a good call. And of course, Brown hasn’t always used its amicus briefs in the most constructive way, and it should be rightfully held accountable when it strays from what should be its primary goal — protecting its students and faculty. But its decision to file a brief against the travel ban, though legally negligible, is worthy of a nod of approval.

Connor Cardoso ’19 can be reached at connor_cardoso@brown.edu. Please send responses to this opinion to letters@browndailyherald.com and other op-eds to opinions@browndailyherald.com.