Some Supreme Court ‘Friends' Are Better Than Others

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By Kimberly Strawbridge Robinson

May 18 — The number of amicus briefs filed with the U.S. Supreme Court has nearly doubled in recent years, Adam Feldman, an attorney and doctoral candidate in political science at the University of Southern California, Los Angeles, told Bloomberg BNA in a May 13 e-mail.

But not all amicus briefs are created equal.

As a general rule, the justices “spend the most time on briefs that add something new to the case,” as opposed to “ ‘me too' briefs that just restate the parties’ arguments,” recent Supreme Court clerk Brian P. Goldman told Bloomberg BNA in an e-mail May 12.

Which groups are the best at getting the justices' attention? That's a question Feldman attempted to answer in a May 11 post on his blog Empirical SCOTUS by looking at the number of times the justices cited to specific amicus briefs.

Not only was the National Association of Criminal Defense Lawyers cited the most, it was also “the most effective amicus” according to Feldman's metric.

But Feldman told Bloomberg BNA May 13 that his measure isn't great at determining “influence” with the court, which he distinguishes from “effectiveness” at getting the justices' attention in a particular case.

That could explain why the heavy-hitting U.S. Chamber of Commerce—whose record was called “nothing short of extraordinary” in a 2009 law review article—performed relatively poorly under Feldman's metric.

Numbers Nearly Doubled

There “were almost twice as many amicus briefs filed in the 2015 calendar year as there were in the 2005 calendar year,” Feldman told Bloomberg BNA.

“Some of the year by year variation has to do with whether the Court hears specific types of cases.” For example, Feldman said cases with large societal implications “tend to accumulate many more amicus briefs than the average case,” pointing to the case that challenged the constitutionality of the Affordable Care Act, Nat'l Fed'n of Indep. Bus. v. Sebelius, 80 U.S.L.W. 4579, 2012 BL 160004 (June 28, 2012) (81 U.S.L.W. 19, 7/3/12), and the same-sex marriage case, Obergefell v. Hodges, 83 U.S.L.W. 4592, 2015 BL 204916 (June 26, 2015) (83 U.S.L.W. 1989, 6/30/15).

“The presence or absence of these cases, however, cannot account for the movement from between 700 and 900 amicus briefs in the early years of the Roberts Court to the 1300-1500 briefs filed in the last few years,” Feldman said.

The increase is likely due to a “combination of a Supreme Court Bar with more repeat players who understand how amicus briefs can be deployed helpfully, and the Court’s signals, via citations in opinions and references at oral argument, that it welcomes briefs that contribute something new to the discussion,” Goldman, now of Orrick, Herrington & Sutcliffe LLP, San Francisco, said.

Grabbing Attention

Due “to the number of amicus briefs submitted to the Court the Justices candidly share that they cannot and do not read through all of them,” Feldman wrote on his blog. A lot of work analyzing the amicus briefs fall on the justices' clerks, Feldman told Bloomberg BNA.

Goldman, who clerked for Justice Sonia Sotomayor, said that “varies by chambers and case.”

As a general rule, though, the justices spend the most time with briefs that offer “new and relevant information not already provided by the parties,” Goldman said. This includes “details about the real-world consequences of the Court’s decision, an explanation of how the Court’s decision might affect other related areas of law, proposals for alternative legal theories or compromise positions, and the like.”

Goldman pointed to Kirtsaeng v. John Wiley & Sons, 81 U.S.L.W. 4167, 2013 BL 72102 (U.S. March 19, 2013)—argued while he was clerking with the high court—as a good example.

Justice Stephen G. Breyer wrote in his most recent book “that the briefs ‘from associations of commercial and nonprofit entities with high economic stakes in the matter' provided the Court with the information about ‘the interaction of foreign and domestic markets,' specifically ‘the way sales of items abroad would have an impact upon Americans' that the Court needed ‘to resolve the case satisfactorily,' ” Goldman explained.

“That comes across in the Court’s opinion, which discusses the amicus briefs at length,” he said.

‘Amicus Effectiveness Score.'

Feldman set out to determine if certain groups were better at getting the justices to at least take a look at their argument—what he calls “effectiveness.”

“The Court is often a closed space,” and there “is a dearth of available information about the current decision-making process,” Feldman explained.

One way to compare groups’ impact on that decision-making is to look at the justices' citations to amicus briefs in their opinions, he said.

Feldman created an “Amicus Effectiveness Score,” which is “the number of cases where a group’s amicus briefs are cited divided by the total number of amicus filings for the group.”

Not only was the National Association of Criminal Defense Lawyers cited the most from 2005-2016 with 21 citations, it was also the most effective amicus according to the Amicus Effectiveness Score, Feldman said.

The court seems to take “amicus briefs from the NACDL and from the Criminal Justice Legal Foundation”—also near the top of the list—“seriously in criminal law/procedure cases,” Feldman told Bloomberg BNA. This may have to do “with the fewer amicus briefs filed on average in these cases when compared with other case types.”

Also at the top of the list was the American Civil Liberties Union, Public Citizen, Inc. and the American Bar Association. These are repeat players that “have established their reputations over time,” Feldman said.

Influence Hard to Measure

The “Chamber of Commerce of the United States which filed the most amicus briefs over this period placed in the lower half of the groups for overall effectiveness,” Feldman wrote on his blog.

But a 2009 law review article by DePaul University College of Law professor David L. Franklin, Chicago, said that the Chamber was an “unusually successful” amicus, noting that “parties supported by the Chamber at the merits stage prevailed more than two-thirds of the time.”

Feldman said the different perceptions could be a result of the “distinction between effectiveness and influence.”

“Influence is probably much more important to interest groups because they want to affect policy direction as well as case outcomes,” he said. But, he added, influence is harder to measure.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com