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Tomorrow, the Supreme Court will hear oral arguments in the most briefed dispute it has ever had before it. More than 90 amicus briefs have been filed in two cases challenging the admissions process at the University of Michigan — 74 in support of the constitutionality of affirmative action, 15 against, and five taking neither side. The fact that so many amici petitioned the Court in Gratz v. Bollinger and Grutter v. Bollinger is not surprising. While Supreme Court practice has changed fairly little over the last century, there has been a major transformation in one area: the extent to which nonparties influence the justices through amicus briefs. According to the most comprehensive study on Supreme Court amici, published by Joseph Kearney and Thomas Merrill in the January 2000 University of Pennsylvania Law Review, amicus participation has increased by more than 800 percent over the last 50 years. While such briefs were filed in only about 10 percent of the Court’s cases in the first few decades of the 20th century, they have been filed in 85 percent of argued cases in recent years. Currently, about 500 amicus briefs reach the Court annually. Moreover, the success of amici, as measured by the justices’ references to them during oral argument or in written decisions, has also grown demonstrably, according to the Kearney-Merrill study of 6,000 Supreme Court cases from 1946 to 1995. For example, the study found a total of 936 decisions that referred to an amicus, representing about 28 percent of all cases in which amicus briefs were filed. Further, the likelihood of an amicus reference has doubled, from about 18 percent of cases with amicus filers between 1946 and 1955 to 37 percent of cases with amicus filers between 1986 and 1995. But even with this history, the number of amicus briefs in the Michigan cases is spectacular — and appropriate. It represents the breadth and depth of the pedagogical, societal, and economic interest. It also demonstrates some key purposes of amici briefs. MULTITUDES SPEAK Historically, groups have used the judicial branch as a vehicle for social and legal reform. The NAACP, for example, began to attack racial segregation through amicus briefs in 1941, and by 1954 the Supreme Court had ordered public school desegregation. In Brown v. Board of Education, the Court relied on the brief of Thurgood Marshall, then director of the NAACP Legal Defense and Educational Fund. The Marshall brief came with a 24-page appendix entitled, “The effects of segregation and the consequences of desegregation: a social science statement,” and was signed by 32 of the “foremost authorities in sociology, anthropology, psychology and psychiatry.” Many scholars believe that the nonlegal social data in the appendix were even more critical to the Brown victory than Marshall’s discussion of legal precedent. While not technically an amicus brief (because the NAACP fund was a party in the case), the success of the appendix showed the path for actual amici to provide like information to the Court. Then and now, “the principal contribution of amici is the interest [they show in the case], and interest equals effect,” says Georgetown law professor Paul Rothstein, who has filed successful amici briefs before the Court. Particularly in controversial cases, Rothstein advises, “it is important for the Court to see the effects each position would have on society, and amici briefs make the best, most valuable contribution to that.” Over the years, as the Kearney-Merrill report also shows, the amicus briefs that bring to the Court’s attention those positions it is otherwise unlikely to hear, or that provide unusual expertise, have had the most impact. Indeed, Supreme Court Rule 37 specifically provides that “[a]n amicus curiae brief that brings to the attention of the court relevant matter not already brought to its attention by the parties may be of considerable help.” Conversely, the rule says, “[a]n amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.” MISSION CRITICAL Consistent with their historical role, the Michigan amici add critical and otherwise unheard voices to a weighty debate. For example, the consolidated brief of Lt. Gen. Julius Becton Jr., Gen. Wesley Clark, war-injured Sen. Max Cleland, Defense Secretary William Cohen, Adm. William Crowe, Defense Secretary William Perry, Gen. H. Norman Schwarzkopf, Gen. John Shalikashvili, and Gen. Hugh Shelton, among other retired military leaders, offers the Court the wisdom of their decades of experience. They say that “a highly qualified, racially diverse officer corps educated and trained to command our nation’s racially diverse enlisted ranks is essential to the military’s ability” to fulfill its mission. The officer corps is drawn from the highly selective service academies, as well as from ROTC programs at colleges nationwide. Certainly, there could be no more relevant time for the Court to hear this critical consideration. A diverse group of 60 congressmen and -women, representing 24 states and two territories, argues that proven disparities in K-12 educational opportunities for minority children impede their access to higher education and thus must be taken into account in any decision about college admissions. Professor Rothstein notes that the legislators provide a “special kind of amicus brief” in that they were elected to represent the interests of the people and so speak to the real-life impact of judicial decisions. Not everyone in the legal community agrees on the utility and influence of amicus briefs. But the exhaustive Kearney-Merrill study provides strong evidence of their “integral role in Supreme Court litigation.” And at least one justice has said it explicitly. In 1998 remarks, Justice Stephen Breyer discussed Webster v. Reproductive Health Services, a 1989 abortion case that drew 78 amicus briefs — the second-highest number after the Michigan cases. (Interestingly, the third-highest number came in Regents of the University of California v. Bakke (1978).) Breyer noted that the Court had received briefs from organizations of doctors, nurses, psychologists, hospice workers, and handicapped persons. Their specialized expertise, said Breyer, “play[ed] an important role in educating judges on potentially relevant technical matters, helping to make us, not experts, but educated laypersons, and thereby helping to improve the quality of our decisions.” In the Michigan cases, the Court may already have acknowledged its interest in such briefs. In a March 10 order, it granted leave for the Exxon Mobil Corp. to file an amicus brief well past the filing deadline and in addition to the 90-plus briefs already filed, including one representing 65 corporate entities. DOES IT MATTER? In the end, will the amici make a difference in the Michigan cases? They should, of course, and the history of Supreme Court decisions and decision-making suggests that they will. The Court has long accepted the importance of expert information and study in cases involving education, health care, and other technical or specialized fields. And amici supporting the University of Michigan argue that the composition of student bodies and the educational value of racial diversity is an issue that should be left to educational experts. More instructive, however, may be the words of Justice Sandra Day O’Connor, who in 1992 discussed the value of understanding “the impact of legal rules on human lives.” This is excruciatingly important today, for the good of racial diversity extends far beyond the college campus. When the space shuttle Columbia blasted off in January, it carried the most diverse crew of scientists, engineers, and pilots that the United States had ever sent into space. The hopes and dreams of schoolchildren all over America went with those astronauts — black, white, Indian, and Israeli men and women working together as one. It was a powerful image. Conversely, the post-Sept. 11 investigations into possible failures in U.S. intelligence uncovered a major concern that our military and intelligence agents do not spring from a diverse enough community to carry out key missions. In this critical area, we have not been working together. The 90-plus amici in the University of Michigan cases attest to what was right about the Columbia crew, what is wrong in our intelligence efforts, and what needs to be done in college admissions. They help to show, in Justice O’Connor’s words, “that the law is not an abstract concept removed from the society it serves and that judges, as safeguarders of the Constitution, must constantly strive to narrow the gap between the ideal of equal justice and the reality of social inequality.” Leslie T. Thornton is a partner in D.C.’s Patton Boggs, practicing with the firm’s public policy and litigation groups. She previously served as chief of staff to then-Secretary of Education Richard Riley. The views expressed here are her own.

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