The Influence of Amicus Curiae Briefs on U.S. Supreme Court Opinion Content

• Published date: 01 December 2015
• Date: 01 December 2015
• DOI: http://doi.org/10.1111/lasr.12166

The Influence of Amicus Curiae Briefs on U.S.

Supreme Court Opinion Content

Paul M. Collins, Jr.

Pamela C. Corley

Jesse Hamner

We address fundamental questions about the ability of interest groups to

shape public policy by examining the influence of amicus curiae briefs on U.S.

Supreme Court majority opinion content. We argue that the justices will

incorporate language from amicus briefs into their opinions based on the

extent to which the amicus briefs contribute to their ability to make effective

law and policy. Using plagiarism detection software and other forms of com-

puter assisted content analysis, we find that the justices adopt language from

amicus briefs based primarily on the quality of the brief ’s argument,the level

of repetition in the brief, the ideological position advocated in the brief, and

the identity of the amicus. These results add fresh insight into how interest

groups influence the development of federal law by the Supreme Court.

To understand constitutional law in the United States, judges

and scholars point to a variety of sources. Some judges stress the

need to focus on the preferences or words of the framers (Bork

1990; Scalia 1997), while others offer the view that the Constitution

should be understood according to more contemporary values

(Breyer 2005). Academics argue that constitutional law develops by

other means, including through long term constitutional conversa-

tions (Friedman 1993), interbranch interactions (Meernik and

Ignagni 1997), and social movements (Ackerman 1991). While each

of these perspectives offers insight into American constitutional

development, arguably the most important vehiclefor comprehend-

ing constitutional law is found in the majority opinions of the

Supreme Court (Shapiro 1968). Through its opinions, the Court

A previous version of this research was presented at the 2013 annual meeting of the

American Political Science Association. We are grateful to participants on that panel, espe-

cially Lee Epstein, Tim Johnson, Richard Posner, Amy Steigerwalt, and Art Ward, for their

thoughtful comments on this project. We also extend our thanks to the anonymous

reviewers for their very useful feedback.

Please direct all correspondence to Paul M. Collins, Jr., Department of Political Science,

University of Massachusetts Amherst, Thompson Tower 328, 200 Hicks Way, Amherst, MA

01003; e-mail: pmcollins@legal.umass.edu.

Law & Society Review, Volume 49, Number 4 (2015)

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C2015 Law and Society Association. All rights reserved.

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establishes appropriate norms of behavior, provides guidelines

regarding the constitutionality of particular programs, and affords

direction to lower court judges and future Supreme Courts who are

charged with adjudicating disputes touching on similar factual cir-

cumstances. Our purpose here is to contributeto our understanding

of Supreme Court opinions by examining the extent to which ami-

cus curiae (“friend of the court”) briefs influence their content.

Investigating this topic is significant for a number of reasons.

First, it sheds new light on the ability of interest groups to shape the

Court’s policy outputs. Although there has been no shortage of

research on friends of the court, scholars have overwhelmingly

examined the ability of amici to influence case outcomes or the jus-

tices’ voting behavior in those cases (e.g., Black and Boyd 2013;

Box-Steffensmeier, Christenson, and Hitt 2013; Caldeira and

Wright 1988; Collins 2008a; Kearney and Merrill 2000). While

these are important avenues for study, they do not address the con-

tent of the Court’s opinions, which is the most significant means by

which the Court contributes to legal and social policy. For example,

the amicus brief filed by the American Civil Liberties Union in Craig

v. Bo ren (1976) was instrumental in the Court’s adoption of the

intermediate scrutiny standard for evaluating gender discrimina-

tion claims (Campbell 2002). Such highly significant forms of influ-

ence would be missed by extant research that focuses on case

outcomes, but can be captured using the content analysis techni-

ques used in the current analysis.

More broadly, this research is valuable in that it contributes to

our understanding of how organized interests use language to

shape public policy. Traditionally, interest group scholarship has

focused on the ability of groups to affect policy outputs by focusing

primarily on the presence or amount of lobbying activity (for a

review, see Hojnacki et al. 2012). Although significant, this research

has generally ignored the ability of interest groups to use language

to influence the content of public policy. These techniques are ubiq-

uitous across legal and political venues, and include proposing rules

to bureaucratic agencies, submitting model statutes to legislatures,

and filing legal briefs with judicial bodies. Here, we join a growing

group of scholars in examining how interest groups leverage lan-

guage in their advocacy efforts (e.g., Chien 2011; Kl€

uver 2009;

Pedersen 2013).

Third, this topic is important because it provides insight into

how justices craft the content of their opinions.

1

At the Supreme

1

Although we refer to “justices” throughout this article, we recognize that majority

opinions are the product of a justice’s chambers, including the law clerks who are the first,

and sometimes only, readers of amicus briefs and who play a significant role in shaping the

content of the justices’ opinions (Lynch 2004; Wardand Weiden 2006).

918 The Influence of Amicus Curiae