The Supreme Court, Ideology, and the Decision to Cite or Borrow from Amicus Curiae Briefs

Date01 March 2022
Published date01 March 2022
Subject MatterArticles
American Politics Research
© The Author(s) 2021
Article reuse guidelines:
DOI: 10.1177/1532673X211032111
A previous version of this manuscript was presented at the
Midwest Political Science Association Annual Conference,
April 5 to 8, 2018. I thank Thomas Hansford, Alex Badas,
and the anonymous reviewers for helpful comments and sug-
gestions. I thank Leopoldo Navarrete, Elizabeth Duncan, and
Shameeka Donaldson-Bell for research assistance. Any and
all errors are my own.
In Grutter v. Bollinger (2003) the Court determined that the
use of race as a “plus” in law school admissions decisions did
not violate the Equal Protection Clause of the 14th Amendment,
upholding this form of affirmative action in university admis-
sions. Justice Sandra Day O’Connor authored the majority
opinion and cited about eight different amicus curiae briefs 12
times. These references received attention in national newspa-
pers such as the Washington Post and the New York Times.1
Much less apparent, was the fact that 37% of the opinion was
composed of the exact language from amicus curiae briefs
filed in the case. These two types of uses of amicus curiae
briefs are distinct in that one is revealed to the reader (citing)
and the other is not (borrowing). This phenomenon brings to
light an interesting puzzle—what types of interest groups are
the justices citing and which are they borrowing language
from and does this differ based on the type of use? More spe-
cifically, do the justices act more ideologically when amicus
use is concealed (when borrowing language) and less ideo-
logically when it is revealed (when citing)?
Over the past several decades, interest groups have
worked to exert their influence over Supreme Court deci-
sions, often by submitting amicus curiae briefs in an attempt
to sway the justices’ decision making, and scholars have
debated how much attention the justices give to these briefs.
One noticeable indication of amicus influence is the jus-
tices’ tendency to cite these briefs in their majority opin-
ions, and while this phenomenon is not common, citations
in opinions of all varieties have been increasing over time
(Franze & Reeves Anderson, 2015, 2020; Kearney &
Merrill, 2000, p. 758; Owens & Epstein, 2005). A less obvi-
ous but equally important (and more common) indicator is
the use of amicus provided language in majority opinion
content (Collins et al., 2015). Here, the justices take the
exact language from amicus briefs and incorporate it
directly into their opinions. Analyzing these two types of
use contributes to our understanding of the justices as both
legal and political actors by revealing the contexts in which
they do or do not behave ideologically. Further, it speaks to
the literature on the usefulness of amicus curiae briefs and
1032111APRXXX10.1177/1532673X211032111American Politics ResearchCanelo
1University of Texas at Arlington, USA
Corresponding Author:
Kayla S. Canelo, University of Texas at Arlington, 701 South Nedderman
Drive, Arlington, TX 76019, USA.
The Supreme Court, Ideology,
and the Decision to Cite or Borrow
from Amicus Curiae Briefs
Kayla S. Canelo1
Scholars have sought to understand the dual characterization of Supreme Court justices as both legal and political actors.
One way to further uncover this complexity is to assess how the justices engage with the interest groups that file amicus
curiae or “friend-of-the-Court” briefs. Scholars have revealed that the justices often “borrow language” from these briefs
in their opinions. However, much less often, they cite the amici. These two uses are distinct in that one is revealed to the
reader while the other is not. So which interest groups do the justices decide to cite and which do they borrow language
from? I find the justices borrow more language from ideologically similar interests, but that ideology plays a less central role
in the decision to cite. Specifically, I find that the justices are less likely to cite briefs filed by ideologically overt interests, but
this only extends to the most ideologically “extreme” groups. Further, the justices are not more likely to cite briefs filed by
interests that are ideologically similar to their own preferences. These findings provide insight into how the justices balance
policy and legitimacy goals.
Supreme Court, ideology, amicus curiae, interest groups
2022, Vol. 50(2) 255 –264

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