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

• Author: Kayla S. Canelo
• Date: 01 March 2022
• DOI: 10.1177/1532673X211032111
• Published date: 01 March 2022
• Subject Matter: Articles

https://doi.org/10.1177/1532673X211032111

American Politics Research

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DOI: 10.1177/1532673X211032111

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Article

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

research-article2021

1University of Texas at Arlington, USA

Corresponding Author:

Kayla S. Canelo, University of Texas at Arlington, 701 South Nedderman

Drive, Arlington, TX 76019, USA.

Email: kayla.canelo@uta.edu

The Supreme Court, Ideology,

and the Decision to Cite or Borrow

from Amicus Curiae Briefs

Kayla S. Canelo1

Abstract

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.

Keywords

Supreme Court, ideology, amicus curiae, interest groups

2022, Vol. 50(2) 255 –264