On January 24, 2022, the United States Supreme Court granted cert in consolidated cases reviewing affirmative action programs at both Harvard and North Carolina Universities along with the Court’s precedent upholding affirmative action programs from the 2003 case Grutter v. Bollinger. By August of 2022, nearly 100 groups and individuals filed amicus briefs covering a range of matters related to the case and on behalf of the main parties in the case. While most cases do not incur this number of amicus briefs, this number has been nearly reached or exceeded several times in the past decade. Most cases before the justices now include multiple amicus filings. While 50-plus years ago, amicus filings were more an aberration rather than an expectation, the terrain has shifted dramatically.
Political scientist Paul Collins defined the purpose of amicus filings in a 2018 article in the Annual Review of Law and Social Science,
“Amicus curiae (“friend of the court”) briefs are a powerful tool that allow interest groups and other entities to participate in litigation when they are not a direct party to the dispute. Through these briefs, amici can present courts with new or alternative legal positions, social scientific and factual information, and perspectives regarding the policy implications of their decisions (Collins 2008a). This is typically done for the purpose of attempting to persuade the courts to endorse a particular outcome in the case (Banner 2003, Harris 2000).”
In their paper The Amicus Machine, Allison Orr Larsen and Neal Devins explain several important facets related to this exponential growth of these briefs. They describe:
“…the modern Supreme Court itself embraces the work of the amicus machine. The Justices seem to prefer a system dominated by Supreme Court specialists who can be counted on for excellent advocacy. They look to these briefs both for legal theories and factual evidence, and they cite them at an increasingly high rate. The Justices also seem to prefer a system (fostered by these briefs) that facilitates the declaration of broad legal rules rather than resolving narrow disputes. Supreme Court specialists are experts in identifying ways in which a case is a good or bad vehicle to establish broad legal principles and, as such, the amicus machine helps the Court identify which cases to hear and how to rule on those cases.”
While amicus filers’ general goal is persuading the justices to take their positions into account in their decisions, the growth in amicus filings has also led to clear differential of impact between briefs where the justices and their clerks clearly examine certain briefs and in all likelihood either quickly skim other briefs or skip reading them altogether. Filing entities often signal the importance of their briefs in order to increase their chances that the justices pay attention to their positions. Such signals, as Larsen and Devins describe, often involve filings by notable repeat player advocates that the justices recognize, or from groups already known to the justices for the importance of their positions.
The clearest indicator that the justices read a brief and acknowledged the positions espoused in it, whether or not the justices actually agree with the arguments in the brief, is through direct citations to the brief in their opinions. Advocates and their employers place value on such citations, often using them as marketing tools showcasing the brief’s, and therefore their respective employer’s success. This article looks at citations to these briefs over the past two Supreme Court terms.
Findings
The citation counts in this article are based on each unique brief cited in each opinion. This means that it does not count duplicate citations to the same brief in the same justice’s opinion, but it does separately count citations within separate opinions within the same overall decision. A hypothetical example illustrating this is that Justices X, Y, and Z cite the same amicus brief on behalf of the United States in separate opinions in case A. Justice X cites the brief four times in the majority opinion, Justice Y three times in dissent, and Justice Z cites the brief twice in a concurrence. The citation count for these would total three.
Based on this approach there were more citations to amicus briefs this past term than in the prior term.
Both terms included a single case dominating these citations. In the 2022 term it was the affirmative action decision, while in the past term it was in Grants Pass as showcased below (the graph shows cases with at least two such citations):
Citation counts to amicus briefs in the two cases described above both include more than four times the number of citations than the case with the next most citations in their respective terms.
The justices do not cite amicus briefs in equal proportions. The next graph shows the total number of citations per justice over these two terms and then broken down into each term
Justices Gorsuch and Sotomayor closely parallel each other in citation counts and far exceed the number of citations from any of the other justices. Their 142 combined citations over the past two terms far exceed the 117 citations combined from the rest of the justices and are almost six times as many as from the four justices with the fewest such citations.
The justices do not cite amicus briefs in equal numbers across all opinion types. Below is a breakdown of cites from these two terms by opinion type
Although dissents are discretionary, these still appear to be the primary opinion type for amicus filings by a small margin over majority opinions. One possible explanation for this ratio of citations in dissents to other opinion types may be that justices wish to show that their views which do not accord with those of the majorities, are not held by the justices alone, but rather are shared by a diverse group of interested parties. These citations may also involve statistics or factual statements that support the dissents’ positions, where the dissenting justices are trying to show both the truth of their positions and to bifurcate their assertions.
A breakdown of citations by both opinion type and justice is quite illuminating:
We see that Justice Sotomayor’s citations in dissenting opinions far exceed those from any of the other justices while Justice Gorsuch’s citation counts in majority opinions are similarly far greater than those from other justices. Even if we account for each of the justice’s number of authored opinions by opinion type, these citation counts do not equate to these proportions.
Now looking at cases with the most individual citations, at least six, then broken down by individual justice’s citations we find:
As shown above, the most citations come from the affirmative action cases and from Grants Pass and, as expected, across the board from Justices Gorsuch and Sotomayor. Other high citation counts include from Justice Jackson’s dissent in the affirmative action cases, Justice Kavanaugh’s dissent in Purdue Pharma, and Justice Alito’s majority opinion from the case Groff v. DeJoy.
One other, interesting way to slice these data is by the justices’ relative number of citations to the most prolific amicus filer, the United States government:
While Justice Gorsuch only has a moderate number of citations to the United States’ briefs, Justice Sotomayor cited the United States most frequently of the justices. Sandwiched in between citation counts from Sotomayor and Gorsuch, Justice Thomas cited the United States in five unique case/opinions and Justice Kagan did so four times. As the United States’ briefs convey the positions of the executive branch and are often described as coming from the “Tenth Justice,” the Solicitor General, based on the SG’s relationship of trust with the justices, this high number of citations from the justices should come as no surprise.
This article shows one measure of amicus brief impact on decisions from the past two terms. Important takeaways include where the briefs are cited and which justices cited them. The justices clearly have multiple, differential uses for these briefs, at least to the extent that they cite them directly, and this understanding (as well as which justices cite them) may assist with the attorneys’ strategies of targeting certain justices’ penchants in these briefs in hope of making specific impacts. It also showcases where this high level of filings come from, as the justices place differential importance on these briefs in particular cases. Similarly, astute amicus filers are aware of the cases where these briefs will likely play more and less important roles, and file these briefs accordingly.
Adam Feldman runs the litigation consulting company Optimized Legal Solutions LLC. For more information write Adam at [email protected]. Find him on Twitter: @AdamSFeldman.