Allison Orr Larsen is a Professor of Law
and Neal Devins is the Sandra Day O’Connor Professor of Law at William &
Mary Law School.
We are living in the age
of the Supreme Court amicus. Last term, amici curiae, or “friends of the
court,” filed 863 briefs at the court – an average of 13 per case argued – and
the justices cited these briefs in 54 percent of the cases they decided. This
is the new normal. Over the past six terms, as Anthony Franze and R. Reed
Anderson have shown, approximately 800 amicus briefs were filed in 93-98
percent of all cases, with marquee end-of-June cases attracting briefs in the
triple digits. That is over an 800-percent increase in submissions from the
1950s and a 95-percent increase from 1995. Although nobody can say for sure
whether these briefs actually change case outcomes, it is clear that the
justices are citing them regularly and that there are more and more “friendly”
briefs from which to choose. The amicus growth spurt is significant and shows
no sign of slowing down.
The real surprise,
however, is the story behind the scenes – a story that amplifies fundamental
changes in both lawyering before the Supreme Court and, more significantly,
Supreme Court decision-making. We tell this story in our forthcoming Virginia
Law Review article, “The Amicus Machine.” After interviewing over two dozen Supreme Court
advocates, we offer a new description of the origin of many amicus briefs
today. The prevalent account portrays motivated interest groups urging their
policy positions on the justices in much the same way they lobby Congress. But
even though the rise of amicus filings is partially linked to interest-group
activity, the most notable aspect of the growth and, in particular, the
influence of amicus filings is the dramatic spike in activity by the so-called
Supreme Court bar. Today, elite, top-notch lawyers help shape the court’s
docket by asking other elite lawyers to file amicus briefs supporting their
petitions for certiorari. When the court takes a case, these same lawyers
strategize about which voices they want the court to hear, and they assign the
chosen groups to other Supreme Court specialists, who craft amicus briefs designed
to bolster their chances of victory.
The end result is
orchestrated and intentional. Skilled advocates find the arguments that matter,
the clients that matter, and the lawyers that matter – and then they match them
up and package them for the justices. A successful venture at the Supreme
Court, in other words, requires a sophisticated amicus strategy. Specifically,
as experienced Supreme Court practitioner Pam Karlan helpfully puts it, a good
Supreme Court advocate needs both an “amicus wrangler” (someone to recruit the
right amici) and an “amicus whisperer” (someone to coordinate the message).
Take, for example, King v. Burwell,last year’s high-stakes decision about the Affordable
Care Act. Breaking from tradition, the government used an outside member of the
private Supreme Court bar to recruit and coordinate amicus briefs in support of
its case. These amicus efforts (which journalist Linda Greenhouse says “were no accident”) made a real difference: Chief Justice John Roberts
cited two pro-government briefs in his opinion for the court, including one
(filed on behalf of economists) on which he appeared to place substantial
reliance.
Examples like this
abound. Many will recall the amicus briefs filed on behalf of military leaders
and corporations in the 2003 affirmative action case Grutter v. Bollinger. Justice Sandra Day
O’Connor cited these briefs in her opinion for the court, referenced them in
her oral bench statement when the decision was announced, and referred to one
of them several times during the oral argument as the “Carter Phillips brief,”
apparently alluding to the lawyer who helped draft it. Similarly and more
recently, five justices repeatedly asked the advocates in Hollingsworth v. Perry, one of the court’s same-sex marriage cases, about
standing arguments pressed by “the Dellinger brief” – referring to Walter
Dellinger, another prominent Supreme Court expert.
These briefs were not
organically developed by concerned interest groups who saw the case as an
opportunity to press their policy positions. They were instead the product of
targeted recruitment and design by Supreme Court experts. The fingerprints of
experts like these can also be seen on other influential amicus briefs, such as
the brief cited in the court’s opinion in Riley v. California, the 2014 cell phone search case, and the brief
discussed at oral argument in Fisher v. University of Texas, the court’s most recent affirmative action case.
Coordinated amicus
briefs are not entirely new, but the forces that now make them routine are new,
and the cumulative effect of these forces – what we call the “amicus machine” –
has so far gone unrecognized. Several modern dynamics keep the machine running.
First, as Harvard law professor Richard Lazarus has documented and explained
effectively, the rise of the Supreme Court bar over the last several decades
has completely changed the nature of Supreme Court advocacy. As the repeat
players before the court who comprise the Supreme Court bar solicit briefs from
and write briefs for their cohorts, they both enhance their reputations and
increase the ranks of other lawyers who help perpetuate the amicus machine.
Second, the court’s new
hunger for information outside the record and the unprecedented rise in briefs
conveying that information also fuel the amicus machine. Competing expert
briefs on factual issues are now mainstream; the conventional wisdom suggests
that you cannot win a big case without them. In fact University of Virginia law
professor Dick Howard calls the modern array of expert amici an “arms race” between Supreme
Court parties. Sophisticated players know they need a strategy to ensure that
their chosen expert voices, as opposed to the many competing ones, are
appropriately highlighted.
Finally, the modern
Supreme Court itself embraces the work of the amicus machine. In their 2014 special report on the Supreme
Court bar, Joan Biskupic and her colleagues at
Reuters interviewed seven justices, and they learned that the justices prefer a
system dominated by Supreme Court specialists who can be counted on for
excellent advocacy. The justices look to these specialists’ briefs both for
legal theories and for factual evidence, and they cite them at an increasingly
high rate. In recent years, the court has also seemed to prefer deciding cases
in a way that facilitates the declaration of broad legal rules rather than
resolving narrow disputes. Because Supreme Court specialists are experts in
identifying ways in which a case is a good or bad vehicle for establishing
broad legal principles, the amicus machine helps the court identify which cases
to hear and how to rule on those cases.
One’s initial reaction
to this amicus machine might well be skepticism. Why should a main
informational resource for the justices be filtered through an elite club of
specialists? Several scholars and journalists have warned about the power of
the Supreme Court bar and the possibility of the court’s docket being captured
by an insular, pro-business cadre.
While these worries are
significant, our article defends the amicus machine by highlighting several
benefits it confers that are often overlooked. Specifically, we note three.
First, the machine disperses the credibility interests long held by the
solicitor general to a broader group of attorneys outside that office, thus
increasing the number of specialists with reputation interests at stake who
will avoid submitting unreliable factual information to the court. Second, the
machine helps the justices’ law clerks to identify cases that are worthy of the
court’s attention, an important function now that circuit splits are less
common and reasons for certiorari more nuanced. And finally, the development of
the machine complements an evolution in the court’s focus from resolving
disputes to enunciating broad legal principles. Supreme Court specialists who
understand the types of legal arguments and factual presentations that will be
most useful to the justices best serve the objectives of the modern court.
To be sure, the amicus
machine has downsides. It is clubby. It is elite. There is a risk that people
who can afford the best advocates will get the ear of the justices, and the
democracy-enhancing ideal of the amicus will be lost. But, we argue, it is a
mistake to focus only on the costs and to overlook the benefits. We push back
on claims that the Supreme Court bar is monolithically pro-business and that
the specialist lawyers who populate it effectively dictate much of the court’s
docket. In an era of infinite information and virtually limitless briefs,
coordination efforts by Supreme Court experts are a controlling force on a
potentially unruly system. At the end of the day, the amicus machine may be a
virtue, and not a vice, of current Supreme Court practice.
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