Amici Curiae in the U.S. Courts of Appeals

• Author: Wendy L. Martinek
• Published date: 01 November 2006
• DOI: 10.1177/1532673X06291678
• Date: 01 November 2006
• Subject Matter: Articles

American Politics Research

Volume 34 Number 6

November 2006 803-824

© 2006 Sage Publications

10.1177/1532673X06291678

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803

Author’s Note:Earlier versions of this article were presented at the 2005 annual meetings of the

Southern and Midwest Political Science Associations. The participants at those panels—in par-

ticular, Paul M. Collins, Jr.,Corey A. Ditslear, David Neubauer, and Karen O’Connor—provided

valuable commentary that substantially enriched my understanding of amici curiae in general.

Sara C. Benesh, Stefanie A. Lindquist, Harold J. Spaeth, and Stephen L. Wasby also read and

commented on earlier incarnations of this research, and I am very grateful for their time

and insights and for those from the anonymous reviewers. I am also grateful to Jolly Emrey,

Christine Nemacheck, Rich Vining,and Art Ward for their insights on related work. All errors and

omissions remain my sole responsibility.

Amici Curiae in the U.S.

Courts of Appeals

Wendy L. Martinek

Binghamton University, Binghamton, NY

Students of law and courts know a great deal about amici curiae vis-à-vis the

U.S. Supreme Court. Conversely,scholars know little to nothing about amici

curiae in the U.S. Courts of Appeals. This article begins to address this defi-

ciency in our state of knowledge by examining the incidence of amici at the

courts of appeals level. Drawing in part on the existing literature regarding

amici in the Supreme Court, I develop a model of amicus curiae participation

in the courts of appeals that arises directly from a consideration of the goals

of potential amicus curiae filers. To wit, amici are interested in obtaining

favorable rulings in the courts, and, hence, there will be more participation

by amici in a case the more desirable that case is as a policy vehicle. An

analysis relying on the data available in the U.S. Courts of Appeals Database

supports this argument.

Keywords: amicus curiae; U.S. Courts of Appeals; interest groups

Writing in 1981, J. Woodford Howard (1981) characterized the U.S.

Courts of Appeals as “among the least comprehended of major federal

institutions” (p. xvii). Happily, more than two decades later, we know a great

deal more about these important courts. We know, for example, that the atti-

tudinal model—the most comprehensive articulation of which comes from

Segal and Spaeth (1993, 2002)—travels well (though not perfectly) to

the U.S. Courts of Appeals setting (e.g., Hettinger, Lindquist, & Martinek,

2004; Songer & Davis, 1990; Songer & Haire, 1992). We also know that the

804 American Politics Research

expression of attitudes in the decision making of circuit judges is structured in

important ways by the U.S. Courts of Appeals’position in the federal judicial

hierarchy (e.g., Benesh, 2002; Reddick, 1997; Songer, Segal, & Cameron,

1994). The U.S. Courts of Appeals have also been the subject of recent com-

prehensive book-length treatments that consider the evolution of the courts of

appeals as a policy-making institution in the 20th century (Songer, Sheehan,

& Haire, 2000), changes in and the consequences of their organizational struc-

ture (Cohen, 2002), and how their member judges respond to the opportuni-

ties presented to them to make law (Klein, 2002).

The body of scholarship regarding the major intermediate appellate courts

in the federal system that has emerged since Howard’s (1981) noteworthy

research is most welcome both because it has given us new insights into judi-

cial politics and behavior that eluded us based on the exclusive study of the

U.S. Supreme Court and because it reflects the growing recognition of the

important role these courts play in and of themselves in the political system.

Despite how far our understanding of these courts has advanced, there con-

tinue to be important areas about which we remain stubbornly and conspicu-

ously uninformed. One such area is the participation of amici curiae in the

U.S. Courts of Appeals.

Understanding what accounts for amicus curiae participation in the courts

(regardless of the position of those courts in their respective judicial hierar-

chy or whether those courts are state or federal) is important in several

regards. First, the evidence that amici curiae matter in terms of the decisions

judges and courts render is considerable. For example, Comparato’s (2003)

recent analysis of amici curiae in state courts of last resort suggests that inter-

est groups can, and do, use amicus curiae briefs to enhance the likelihood of

achieving their desired goals, assuming groups are savvy about judges’ goals

and the state context in which they operate. Other scholarship examining the

likelihood of separate opinions (Hettinger, Lindquist, & Martinek, 2003b)

and lower court reversal (Hettinger,Lindquist, & Martinek, 2003a) has found

amicus curiae activity important for understanding these phenomena. Still

other research, this time focused on the U.S. Supreme Court, demonstrates

that amici curiae are consequential in terms of understanding agenda setting

(Hagle & Spaeth, 2006), oral argument (Johnson, 2004), and judicial deci-

sions (Collins, 2004). Given that the extant research provides more than cur-

sory evidence that amicus curiae briefs matter in terms of the judicial

behavior we observe, it behooves us to understand what accounts for the pres-

ence or absence of amici curiae to begin with.

The second compelling motivation for understanding amici curiae centers

on the place such briefs occupy in the toolkits on which interest groups rely