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Influence of Amicus Curiae Briefs on the Supreme Court

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Influence of Amicus Curiae Briefs on the Supreme Court THE INFLUENCE OF AMICUS CURIAE BRIEFS ON THE SUPREME COURT JOSEPH D. KEARNEt AND THOMAS W. MERRILL1" INTRODUCTION AND OVERVIEW ............................................................ 744 I. THE RISING TiDE OFAMICUS CuRIAE BRIEFS .................................. 751 A. The Level ofAmicus CuriaeActivity, 1946-1995 ........................... 751 B. Citation and Quotation ofAmicus Briefs, 1946-1995 .................... 757 II. THE OPEN DOOR POLiCYTOWARD AMICUS BRIEFS ........................ 761 III. PREVIOUS STUDIES OF THE INFLUENCE OF AMICUS BRIEFS ON SUPREME COURT OUTCOMES ........................................ 767 IV. THREE MODELS OFJUDGING AND THEIR IMPLICATIONS FOR AMICUS BRIEFS ......................................................................... 774 A. The Legal Model .......................................................................... 775 B. The AttitudinalModel ................................................................. 779 C. The Interest Group Model ............................................................. 782 V. AN EMPIRICAL STUDY OF THE INFLUENCE OFAMICUS BRIEFS ......... 787 A. The Overall Success Rates ofAmicus Filers..................................... 789 B. Disparitiesin Amicus Support....................................................... 793 C. The Impact of Amicus Brief Quality .............................................. 801 1. Success Rates of Institutional Litigants ............................... 801 2. Success Rates of Cited Briefs ............................................... 811 t Assistant Professor of Law, Marquette University. BA., 1986, Yale University; J.D., 1989, Harvard University. #-'John Paul Stevens Professor of Law, Northwestern University. B.A., 1971, Grin- nell College; BA., 1973, Oxford University J.D., 1977, University of Chicago. The authors express their appreciation to Robert W. Bennett, Ashutosh Bhagwat, Shari S. Diamond, John Mark Hansen, RichardJ. Lazarus, James Lindgren, Craig Allen Nard, Christopher M. Rohrbacher, Gerald N. Rosenberg, Nancy Scherer, James B. Speta, and the participants in the American Politics Workshop at the University of Chicago and the Georgetown University Law Center Supreme Court Institute for helpful comments on previous drafts of this paper, to Michael R. Borovik, Joel F. Knutson, Michael N. Levy, and John van Voorhis for statistical assistance; and to Nicholas A. Brannen, Tara C. Campbell, Margaret M. Johnson, Thomas D. Noonan, and Andrew T. O'Neill for research assistance. (743) 744 UNIVERSITY OFPENNSYLVANIA LAWREVWEW [Vol. 148:743 3. Success Rates of Briefs Filed by More Experienced Lawyers .................................................. 813 D. Interpretationof Results ............................................................... 815 VI. RECONSIDERING THE RISING TIDE OF AMICUS BRIEFS ..................... 819 CONCLUSION ......................................................................................... 828 APPENDIX A: CASES WITH TWENTY OR MORE AMICUs BRIEFS, 1946-1995 ................................................................831 APPENDIX B: DATA-GATHERING METHODOLOGY .......................... 835 APPENDIX C: STATISTICAL ANALYSIS .............................................. 847 INTRODUCTION AND OVERVIEW The last century has seen little change in the conduct of litigation before the United States Supreme Court. The Court's familiar proce- dures-the October Term, the opening-answering-reply brief format for the parties, oral argument before a nine-member Court-remain essentially as before. The few changes that have occurred, such as shortening the time for oral argument, have not been dramatic. In one respect, however, there has been a major transformation in Supreme Court practice: the extent to which non-parties participate in the Court's decision-making process through the submission of amicus curiae, or friend-of-the-court, briefs. Throughout the first cen- tury of the Court's existence, amicus briefs were rare.' Even during the initial decades of this century, such briefs were filed in only about 10% of the Court's cases. This pattern has now completely reversed itself. In recent years, one or more amicus briefs have been filed in 85% of the Court's argued cases.3 Thus, at the close of the twentieth century, cases without amicus briefs have become nearly as rare as cases with amicus briefs were at the beginning of the century. I Although dated, the best history of amicus curiae briefs in the Supreme Court remains Samuel Krislov, The Amicus Curiae Brief: From Friendship to Advocacy, 72 YALE LJ. 694 (1963). The first recorded appearance of an amicus curiae in the Supreme Court occurred in 1821, see Green v. Biddle, 21 U.S. (8 Wheat.) 1 (1823), which per- haps not coincidentally was the first year the Court accepted written briefs for filing. See DAVID M. O'BmN, SToRM CENTER: THE SUPREME COURT IN AMERICAN PoLncs 146 (1986). 2 See Steven Puro, The Role of Amicus Curiaein the United States Supreme Court: 1920-1966, at 56 tbl.III-l (1971) (unpublished Ph.D. dissertation, State University of New York at Buffalo) (on file with the University ofPennsylvania Law Review). See infra Figure 23 (presenting specific data evidencing the increased filing of amicus briefs). 2000] THE NFLUENCE OFAMICUS BRiEFS Attitudes within the legal community about the utility and impact of amicus briefs vary widely. Perhaps the most common reaction among lawyers and judges is moderately supportive. Amicus briefs, it is said, can provide valuable assistance to the Court in its delibera- tions.* For example, they can present an argument or cite authorities not found in the briefs of the parties, and these materials can occa- sionally play a critical role in the Court's rationale for a decision. Al- ternatively, these briefs can provide important technical or back- ground information which the parties have not supplied.6 Those sharing this perspective can point to the frequent citation of amicus briefs in the Justices' opinions in support7 of the supposition that the Court often finds such briefs helpful. Other members of the legal community, however, offer a much more negative assessment of amicus briefs. For example, Chief'Judge Richard Posner of the Seventh Circuit has written that the amicus briefs filed in his court provide little or no assistance to judges be- cause they largely duplicate the positions and arguments advanced by the parties.8 Those who share this assessment regard such filings as 4 See, e.g., Edmund Ruffin Beckwith & Rudolf Sobemheim, Amints Curiae-Minister ofJustice, 17 FoRDHwAL. REv. 38 (1948); Luther T. Munford, When Does the Curiae Need anAmicu?, 1J. APp. PRAC. & PROCESS 279, 281-83 (1999). 5 The Court will on occasion base its decision on a point or argument raised only in an amicus brief. See, e.g., Teague v. Lane, 489 U.S. 288, 300 (1989) (plurality opin- ion of O'Connor, J.) (ruling against petitioner on question of retroactivity even though the issue "has been raised only in an amicus brief"); Oregon ex. reL State Land Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363, 368 n.3, 382 (1977) (overruling an earlier case even though this action was urged only by amici); Mapp v. Ohio, 367 U.S. 643, 646 n.3 (1961) (overruling Wolf v. Colorado, 338 U.S. 25 (1949), and adopting exclusionary rule in cases of Fourth Amendment violations by state officials, even though that course of action had been urged only by amicus ACLU). As a general rule, however, the Court will not address issues raised only by an amicus. See, e.g., Del- Costello v. International Bhd. of Teamsters, 462 U.S. 151, 154 & n.2 (1983) (citing United Parcel Sent., Inc. v. Mitchell, 451 U.S. 56, 60 n.2 (1981), and noting the Court's hesitation to address an issue raised only by an amicus). 6 Cf Justice Breyer CalsforExperts to Aid Courts in Complex Cases,N.Y. TIMEs, Feb. 17, 1998, at A17 (quotingJustice Breyer as stating that "[amicus] briefs play an important role in educatingjudges on potentially relevant technical matters, helping to make us not experts but educated lay persons and thereby helping to improve the quality of our decisions"). 7 See infra text following note 40 (analyzing the frequency of references to amicus briefs in the Court's opinions). 8 In an order explaining why he was denying leave to file a brief amicus curiae, Judge Posner wrote the following: After 16 years of reading amicus curiae briefs the vast majority of which have not assisted the judges, I have decided that it would be good to scrutinize 746 UNIVERSITY OFPENNSYLVANIA LAWREV!EW [Vol. 148:743 largely a nuisance-imposing unwarranted burdens on judges and their staffs with few, if any, mitigating benefits. According to those who harbor this negative assessment, the judicial system would be im- proved if amicus filings were prohibited or at least sharply curtailed.9 Justice Scalia recently offered a third perspective on the wide- spread filing of amicus briefs. The occasion was Jaffee v. Redmond 0 where the Supreme Court recognized a "psychotherapist's privilege" under Rule 501 of the Federal Rules of Evidence. In a dissenting opinion joined in part by Chief Justice Rehnquist, Justice Scalia of- fered the following observation: In its consideration of this case, the Court was the beneficiary of no fewer than 14 amicus briefs supporting respondents, most of which came from such organizations as the American Psychiatric Association, the American Psychoanalytic Association, the American Association of State Social Work Boards, the Employee Assistance Professionals
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