The Supreme Court’s 2011-12 term could be considered the “year of the amicus” based on the prominent role friend-of-the-court briefs played at the high court. The term saw a record-breaking 136 amicus briefs—plus two court-appointed amici—in the health care cases. See Eric Lichtblau,“Groups Blanket Supreme Court on Health Care,” N.Y. Times, March 24, 2012. In another closely watched case, Kiobel v. Royal Dutch Petroleum, the Court ordered reargument on an issue raised principally in two amicus briefs. See Sue Reisinger, “The Impact of Corporate Amicus Briefs on the Supreme Court in Kiobel,” Corp. Counsel, March 8, 2012. And outside the courtroom, academia was abuzz with Harvard law professor Richard Fallon’s article critiquing—some might say condemning—amicus practices of law professors. Richard H. Fallon Jr., “Scholars’ Briefs and the Vocation of a Law Professor,” 4 J. Legal Analysis 223 (2012).
Last year,
our review of the 2010-11 term indicated that the justices relied on amicus briefs more than ever. See Anthony J. Franze & R. Reeves Anderson
, “The Court’s Increasing Reliance on Amicus Curiae in the Past Term,” NLJ Supreme Court Insider, August 24, 2011. This year revealed a somewhat different picture. While the 2011-12 term continued the upward trajectory in the number of amicus briefs per case, there was a precipitous drop in how frequently the justices cited those briefs, including a sharp decline in the Court’s citation of amicus briefs submitted by the solicitor general. Why the change? And what else can the term tell us about amicus practice in the high court? Our review this year yielded some unexpected findings.
More amicus briefs per case
From 1946 to 1955, amici curiae filed briefs in only about 23 percent of argued cases. Joseph Kearney & Thomas Merrill,
“The Influence of Amicus Curiae Briefs on the Supreme Court,” 148 U. Pa. L. Rev. 743, 753 (2000). From 1986 to 1995, that number jumped to 85 percent. Id.; see also Lee Epstein et al., The Supreme Court Compendium 721 (5th ed. 2012) (showing amicus participation annually from 1946 to 2001). The upward trend continued in the 2011-12 term: 95 percent of cases with signed opinions included at least one amicus brief at the merits stage. That’s up from 93 percent in the 2010-11 term.
The sheer number of briefs per case also continued to rise. In the decade from 1946 to 1955, amici cumulatively filed 531 briefs—an average of fewer than one brief per case. By the 1990s, the Court was receiving about five amicus briefs per case. Kearney & Merrill,
supra, at 752-54, 765 n.71. The 2011-12 term saw twice that number, averaging 10 amicus briefs per case, for a total of 715 amicus submissions in all cases scheduled for argument. That’s up from nine briefs per case in the 2010-11 term.
| Cases set for argument, 2011-12 term | ||||
|---|---|---|---|---|
| Number of cases |
Non- government amicus briefs |
U.S. amicus briefs |
State amicus briefs |
|
| Signed decisions | 64 | 563 | 26 | 38 |
| Per curiam decisions | 1 | 4 | 1 | 1 |
| Dismissed | 3 | 40 | 2 | 4 |
| Reset for argument | 1 | 35 | 1 | 0 |
| Totals | 69 | 642 | 30 | 43 |
As noted, the 2011-12 term also broke the record for the most briefs filed in a case. The 136 amicus briefs filed in the health care cases surpassed by 30 percent the past record of 107 briefs in the Michigan affirmative action cases in 2003,
Gratz v. Bollinger and
Grutter v. Bollinger. To put the 136 health care briefs in perspective, in
Brown v. Board of Education, amici filed only six briefs.
The increased number of amicus briefs per case, however, warrants two caveats. First, the unprecedented number of briefs in the health care cases necessarily skewed the overall average for the term. (Omitting the health care briefs drops the average in the 2011-12 term to eight briefs per case. By contrast, omitting the top case from the 2010-11 term had no effect after rounding.) Second, the sample size in the 2011-12 term was smaller, given the decline in the number of decisions. The court issued 75 signed decisions after argument in the 2010-11 term, but that number dropped to 64 in the following term. As a result, the number of briefs per case increased in the 2011-12 term, even though the overall amicus participation in decided cases in that term (627 briefs) was lower than in the previous term (687 briefs).
Less reliance on amicus briefs
Whether the court is influenced by amicus briefs is an unsettled question of particular importance to amici themselves.
Political scientist Paul Collins recently reviewed more than 50 studies that attempted to assess the influence of nongovernment amicus briefs and found it “an area of confusion.” Paul Collins Jr., Friends of the Supreme Court 4 (Oxford Univ. Press 2008). The uncertainty is compounded by the fact that the justices likely review only a fraction of the amicus briefs, relying instead on their clerks to separate the wheat from the chaff. Fallon
, supra, at 226; see alsoAntonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 102-03 (Thomson/West 2008). Nevertheless, one proxy exists to objectively measure the potential influence amicus briefs have on the justices: whether they cite the briefs in their opinions. Of course, just because a brief is cited does not necessarily correlate with influence, but the citation does signal that the brief contributed to a justice’s analysis of the case.
As recently as the 1950s, the justices almost never referred to “amicus” or “amici” in their opinions. But since then, according to a research database hosted at
Legal Language Explorer the justices’ use of those terms has steadily climbed.
Supreme Court’s Use of the Words “Amicus” and “Amici” Per Decision
Likewise, the percentage of the Court’s decisions citing specific amicus briefs has increased. From 1946 through 1955, the Court referred to amicus briefs in about 18 percent of its decisions that included amicus participation. Kearney & Merrill, supra, at 757. From 1986 to 1995, 37 percent of the Court’s decisions referenced an amicus brief. Id. In the 2011-12 term, the justices cited amicus briefs in 46 percent of the cases with amicus participation. While this frequency falls in line with the citation rate of the early 1990s, it is a drop from the previous term, when the justices cited amicus briefs in 63 percent of their signed opinions. Franze & Anderson, supra, at 2.
