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.
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