Amicus Curiae and the Role of Information at the Supreme Court

• Author: James F. Spriggs,Paul J. Wahlbeck
• Published date: 01 June 1997
• Date: 01 June 1997
• DOI: 10.1177/106591299705000206
• Subject Matter: Articles

Amicus Curiae and the Role of
Information at the Supreme
Court
JAMES F. SPRIGGS, II, UNIVERSITY OF CALIFORNIA, DAVIS
PAUL J. WAHLBECK, GEORGE WASHINGTON UNIVERSITY
Conventional wisdom holds that amicus briefs provide the Supreme
Court with information that is not otherwise supplied by litigants and that
the Court finds this information useful. While several studies explore the
information that amici contribute to the Court in certain notable cases,
judicial scholars have no systematic knowledge regarding the nature of
information furnished by amici or the Court’s use of it in its opinions. We
argue that amici curiae briefs are important because they reduce informa-
tion problems at the Court by helping the justices anticipate the impact of
their opinions. To test conventional wisdom, we examined all party briefs
on the merits and amicus briefs filed in the 1992 term. We found that the
conventional wisdom is largely inaccurate. First, amicus briefs often con-
tribute unique arguments, but they also commonly reiterate their party’s
brief. Second, the Court’s majority opinions are not more likely to use ar-
guments from amicus briefs that offer new information. In fact, the Court
is much less likely to adopt arguments from amicus briefs that exclusively
add arguments not found in their party briefs, even after controlling for a
variety of alternative explanations. The implication is that amici influence
is not a function of the independent information they convey
Nearly all past research on amici curiae implicitly, if not explicitly, argues
that amicus briefs convey critical and reliable information to the Court-
NOTE : An earlier version of this research was presented at the 1995 annual meeting of
the Midwest Political Science Association meeting. Each author contributed equally
to this research, and authorship was attributed alphabetically The authors with to
thank John Gates, Lee Epstein, Lee Sigelman, and Stephen Wasby for helpful
comments. We also recognize the research assistance of Aristotle Evia and
Brandon Reeves.
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information that the Court’s members find useful in making decisions (see
Caldeira and Wright 1988; Epstein 1993: 659). Indeed, conventional wisdom
suggests that courts often rely on factual information or analytical approaches
offered by amici, but not otherwise advanced by the parties to the case. Judi-
cial scholars frequently point to, among other cases, Mapp v Ohio (1961) and
Webster v. Reproductive Health Services (1989) to illustrate these tendencies.
Some argue that the American Civil Liberties Union singlehandedly trans-
formed Mapp, a case involving the possession of obscene materials, into the
seminal ruling extending the exclusionary rule to states (Epstein and Walker
1995: 538; Ivers and O’Connor 1987: 163; McGuire and Palmer 1995). This
was done, they argue, because the ACLU raised the exclusionary rule issue in
its brief, while Mapp and Ohio both argued the case on obscenity grounds.
Similarly, other scholars suggest that Chief Justice Rehnquist’s opinion in
Webster went beyond the appellant’s arguments by adopting the technical and
legal information advanced in the appellant’s amici briefs undermining Roe v.
Wade’s trimester framework (Behuniak-Long 1991: 270).
In spite of these notable examples, judicial scholars have no systematic
knowledge about the information amicus briefs provide the Court or the de-
gree to which the justices use such arguments in their opinions. In looking at
amici activity in specific cases or the activity of certain amici, several earlier
studies find that amici sometimes supplement parties’ arguments and that the
Court occasionally uses such information (Behuniak-Long 1991; Epstein 1993;
Ivers and O’Connor 1987). However, the absence of systematic samples pre-
cludes making general conclusions (see Epstein 1993: 694-99). We do not
know, for example, to what extent amici reinforce the arguments provided by
litigants, as opposed to bringing independent issues and ideas to the Court.
Even if amici contribute unique information, we do not know to what extent
the Court uses their arguments in its majority opinions. In other words, po-
litical scientists lack information on whether amici supply novel information
and whether the Court incorporates their arguments in its opinions.
AMICUS BRIEFS AND INFORMATION
Judicial scholars commonly assert that amicus briefs provide novel infor-
mation that the Court uses in its opinions. One commentator notes: &dquo;Courts
often rely on the factual information, cases or analytical approaches provided
only by an amicus&dquo; (Ennis 1984: 603). The Court, in Rule 37.1, admonishes
potential amici to present unique information: &dquo;An amicus curiae brief which
brings relevant matter to the attention of the Court that has not already been
brought to its attention by the parties is of considerable help to the Court. An
amicus brief which does not serve this purpose simply burdens the staff and
facilities of the Court and its filing is not favored.&dquo; Briefs represent one of the
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few ways interested parties can gain access to the justices and present a com-
plete statement of their arguments. This information signals the economic,
political, and social importance of cases (Caldeira and Wright 1988; Epstein
1993: 659), emphasizes broader policy implications (Barker 1967), notes
breadth and intensity of support for amici’s points of view (Behuniak-Long
1991), and outlines particular issues, legal justifications, and case outcomes.~
I
But, why do amicus briefs provide information, and why would it matter
to the members of the Supreme Court? Justices, after all, have the parties’
briefs and lower court records, and they presumably hold prior beliefs about
appropriate case outcomes and relevant legal doctrine. Hence, why would
information from third parties matter? In this research, we make no claim to
resolve definitively the complex issue of amici influence on the Court. In-
stead, we offer a theoretical rationale for why information might matter and
further provide the first reliable empirical examination of the amount of inde-
pendent information provided by amicus curiae and the extent to which it
appears in the Court’s majority opinions.
From the vast literature on amicus curiae participation and Supreme Court
decision making, we can distill possible answers. Justices are motivated by
ideological preferences for public policy, and they decide cases and shape
legal rules to further those policy aims (Segal and Spaeth 1993; Wahlbeck
n.d.). To fulfill their policy goals, the Court’s members require information
about the potential consequences of alternative decisions (see Caldeira and
Wright 1990: 804). Since litigants are more likely to be narrowly focused on
the case outcome, the broader policy ramifications of the decision may not be
discussed in their briefs (see McGuire 1993; Epstein and Rowland 1991). In
contrast, amicus briefs may provide this information and help the Court’s
members understand the policy implications of their rulings.’ As repeat
1
Over the past several decades, scholars have generated a considerable body of literature
regarding amicus participation before the U.S. Supreme Court. We have information
about the amount of participation (Epstein 1993; O’Connor and Epstein 1981-82, 1983a,
1983b), the types of organized interests filing briefs (Caldeira and Wright 1990), group
tactics and strategies (Cortner 1968; Epstein 1985; Kobylka 1987; O’Connor 1980;
Vose 1959; Wasby 1984), and their evolution from impartial assistants to the judiciary
to policy advocates (Krislov 1963). We also know that amici influence the Supreme
Court’s decision to grant certiorari (Caldeira and Wright 1988) and perhaps even im-
pact decisions on the merits (Songer and Sheehan 1993; Segal 1988; cf. Epstein and
Rowland 1991;
Epstein and Kobylka 1992).
2
Some scholars might suggest that it is not the nature of the information but merely the
presence of amici that influences the Court’s decision making (Caldeira and Wright 1988:
1113). Caldeira and Wright (1988) argue that the presence of amici at the certiorari
stage signals the policy significance of a case. This is true at the cert stage because such
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players possessing experience and resources, many amici are often endowed
with strategic advantages (see Epstein and Rowland 1986) and thus are able
to make persuasive presentations of the constraints facing judges and focus
on the development of legal rules (see Galanter 1974). The important func-
tion of amici therefore relates to the kinds of arguments they advance (see
Epstein and Kobylka 1992: 306).
Policy-based information is especially relevant given that the Court must
rely on others to implement its opinions. As strategic actors, Supreme Court
justices realize that the legal rules undergirding their opinions can affect how
implementors react to them (Spriggs 1996). Justice Stewart discussed this
point in a memo to Justice Stevens regarding the majority opinion in Hampton
v. Mow
Sun Wong (1976), a case involving a Civil Service Commission regula-
tion barring resident aliens from employment in the competitive civil service,
Stewart (1976) wrote: &dquo;My uncertainty regarding the contours of the general
due process rules set forth in the opinion causes me to be concerned about
how other courts will interpret and apply them.&dquo; In this sense, amicus briefs
may increase the amount or credibility of information available to the Court,
and these arguments allow the justices to...