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WASHINGTON � Arrayed in their traditional green jackets, these amicus briefs � remarkable for sheer number � call out to U.S. Supreme Court justices and clerks for attention in the most hot-button, fundamental constitutional challenge of the term. The 67 amicus briefs in what is simply known as “the D.C. gun case” fail to topple the record number filed in the University of Michigan affirmative action cases in 2003 � 107 � but they easily fit within the top 10 filings at the high court. The justices on March 18 will hear arguments on whether the District of Columbia law banning handguns violates the Second Amendment right of individuals � as held by the lower federal appellate court � to keep and bear arms. District of Columbia v. Heller, No. 07-290. The number of amicus briefs filed in the gun case reflects the modern interest-group litigation explosion in the high court, even as the number of cases on the docket dwindles. It also reflects an explosion in interest-group participation, seen in the number of groups joining particular briefs, noted political scientist Paul Collins of the University of North Texas, author of a number of studies and a forthcoming book on the influence of amicus participation in the Supreme Court. “The broad range of issues developed in the gun amicus briefs is interesting and supports the idea that Supreme Court cases are often about things far more important than what is important to the immediate parties,” said Collins. In addition to standard legal analysis, the amici in the gun case engage in discussions of public policy, said Collins, everything from crime to children’s safety to racial discrimination to federalism. Some of the briefs are heavy with statistical evidence, reading more like scientific than legal analyses, he added. But does the number of amicus briefs matter? Collins’ studies conclude it does. “It’s not determinative,” he said, explaining, “A number of factors shape the choices justices make, but over time, pretty consistently justices tend to rule on the side with the largest number of briefs.” Although remarkable because of their number, the gun amicus briefs also are notable for what is missing. Keeping count An extraordinarily high-profile constitutional case generally draws an outpouring of amicus efforts by top Supreme Court practitioners. But with the exception of a handful of veterans, such as Robert A. Long of Covington & Burling, Charles Cooper of Cooper & Kirk, Jeffrey Lamken of Baker Botts and Andrew Frey of Mayer Brown, the amicus lawyers are predominantly from smaller firms outside of the Beltway, particularly on the side of the gun ban challengers. The three lawyers who successfully challenged the gun ban through the lower courts were “courted” by Supreme Court practitioners when the case arrived at the high court, recalled one of the three, Robert Levy of the Cato Institute, a think tank. Those practitioners came forward “not with self-serving arguments but with the goal of increasing the likelihood the case would prevail,” said Levy. But, he added, “Alan Gura worked on this for five years and won the case below. It’s a tall order for your first Supreme Court case to be this one, but I think he’ll do just fine.” It would have been “nice” if some other Supreme Court “heavyweights” had weighed in, he said. “It is a very controversial issue and it is very unusual to have an issue like this being litigated by three novices,” said Levy. “As a result, the major players may have felt they were on the periphery and therefore would stay there.” But it is also true, suggested one Supreme Court veteran, that there is a very dedicated bar on both sides of this issue. Those lawyers have been involved in the gun debate and litigation for many years, he noted, and they may have been reluctant to cede control once the case reached the Supreme Court. “It’s a true-believer bar, on both sides,” he said. By one account, the first amicus brief was filed in the Supreme Court in 1823 in Green v. Biddle, 21 U.S. (8 Wheat.) 1, in which the justices asked for Henry Clay’s help in determining how the commerce clause applied to a land agreement between Kentucky and Virginia. Amicus briefs were rare in the court’s first century, and even in the first few decades of the 20th century they were filed only in about 10% of the cases. But since the 1950s, the number has skyrocketed. Collins reports the percentage of cases with amicus briefs (and the average number of briefs per case) in the past five decades: • 1990-present � about 90% (almost six briefs per case). • 1980s � about 80% (3.5 briefs). • 1970s � about 60% (2 briefs). • 1960s � about 41% (1 brief). • 1950s � about 22% (0.5 brief). In the high court’s gun case, 20 amicus briefs support the District of Columbia’s defense of its handgun ban. The district’s amicus effort was coordinated by the city’s solicitor general, Todd Kim, who declined to talk about the case before argument. Walter Dellinger, head of the appellate and Supreme Court practice at O’Melveny & Myers, will argue for the city, the petitioner in the case. On the respondent’s side, 47 amicus briefs were filed. The case’s three main lawyers � Cato’s Levy, Gura of Washington’s Gura & Possessky; and Clark M. Neily, an attorney with the Institute for Justice � coordinated the amicus effort. Gura will argue the case. “Our original focus was to make sure we covered all of the issues and in a manner that was not duplicative,” said Levy. “We attempted to draw up a list of issues, such as the empirical data on gun control and the meaning of ‘well regulated’ militia.” The three lawyers then tried to identify which organizations and attorneys would be best suited to address those issues in amicus briefs. “We tried to get folks together at a meeting and encouraged them as to what topics each should tackle,” he said. “We met with some success in that regard.” Levy said his side was helped “immeasurably” by the National Rifle Association, which not only filed its own amicus brief but led the effort to get an amicus brief on behalf of 250 members of Congress that also was signed by Vice President Richard Cheney. “That was an effort we could not have mounted,” he conceded. “They have enormous resources we don’t have.” The 47 amicus briefs, he also conceded, are “too many,” but probably the result of a blanket permission for the filing of amicus briefs. “We didn’t want set up ourselves as obstacles to reasonable discourse,” he said. “The disadvantage is we get briefs making points we would not make.” The briefs against the gun ban range from familiar institutional groups, such as the National Rifle Association, the Institute for Justice and the American Center for Law & Justice, to the many more and less familiar, such as the Pink Pistols, Jews for the Preservation of Firearms Ownership and Virginia 1774. Less is more? On their opponents’ side, the 20 amicus briefs are much more institutional and less grassroots in nature; for example: the American Bar Association, the NAACP Legal Defense and Educational Fund, the American Jewish Committee and the American Academy of Pediatrics. The smaller number, according to some high court practitioners, reflects the skill and experience of Dellinger, who knows there is an optimum number of amicus briefs, and that a smaller number from well-known advocates is more likely to get closer attention than a large number from relatively unknown practitioners. Both sides have briefs from states, history and criminal justice scholars, and former law enforcement officials. Baker Botts’ Lamken, who wrote the amicus brief for the American Jewish Committee, which also was signed by 60 other organizations, is a former high court clerk and assistant to the solicitor general. At the certiorari stage � when a party is seeking review � a “stack” of amicus briefs is not a bad thing, said Lamken. “It does suggest importance.” But at the merits stage, he said, there is only so much material that a clerk, a justice or any human being can absorb. “After the fifth, sixth or seventh amicus brief on one side, you reach a stage of diminishing returns,” he said. “The new, innovative ideas or powerful points become a needle in a haystack.” But Lamken emphasized that “everybody gets a scan” in the case. “There is an egalitarian streak to the court where it understands that you don’t have to be a Carter Phillips to have a good idea,” he said, referring to the veteran Supreme Court attorney at Sidley Austin. “On the other hand, if the brief is by folks well known in the bar, it’s just natural there is going to be a reactive process in which the clerk is going to pay a little more attention, and frankly, it pays off. The briefs read quickly; you don’t have to struggle through them. There is more bang for the buck.” In a recent article drawing upon 70 interviews with former high court clerks who served from 1966 to 2001, Kelly J. Lynch reported something of a hierarchy of deference given by clerks to amicus briefs, a hierarchy reflected in other studies examining briefs’ influence on the justices themselves. First in influence are briefs from the solicitor general of the United States, followed by the states and then by other governmental interests, such as Congress, the National League of Cities and the State and Local Legal Center. After governmental entities, according to Lynch, come briefs by public interest groups, most notably the American Civil Liberties Union (ACLU), because of its consistent excellence and salient legal arguments, said many of the former clerks. In studying the influence of amicus briefs on the justices, North Texas’ Collins said he expected to find a certain amount of “self-reflection” by the justices. Liberal justices, for example, would respond to liberal amicus briefs and ignore conservative ones and vice versa. “I found that regardless of philosophy, they tend to be influenced just by the briefs,” he said. “The strongest influence occurs for moderate justices who, we might say, have less extreme ideologies.” Lamken and others noted that, on rare occasions, an amicus brief has offered the basis of the court’s majority opinion. For example, the ACLU’s brief played a crucial role in the adoption of the exclusionary rule in Mapp v. Ohio, 367 U.S. 463 (1961). And the Criminal Justice Legal Foundation’s brief offered the road map to the retroactivity rule announced in Teague v. Lane, 489 U.S. 288 (1989). But, Collins cautioned, amicus briefs, while influential, are one of many influences on the justices. “That being said,” he added, “in a weird way, amicus briefs keep judges more honest in that judges rely less on their attitudes in rendering decisions in cases with amicus participation.”

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