It wasn’t a cut-and-dry judgment, but I decided that on balance, I should count the brief as one of NACDL’s briefs that led to a grant. It’s true that NACDL wasn’t supporting the petitioner in Booker, but it supported the petition being granted (with the questions reframed).

Our Association has over 12,000 members who are active criminal defense lawyers, both public defenders and private sector. It is sometimes hard for our members to understand that NACDL support that might raise the visibility of their clients’ cert petitions is not and cannot be a “member perk.” We work hard to ensure that the credibility we earn with the quality of our merits-stage amicus briefs is not squandered on support of inappropriate cert petitions. Our committee has a national Deputy Chair — himself an active and capable Supreme Court practitioner — whose principal responsibility is the screening of cert-stage inquiries. (Our three national co-chairs supervise the merits briefing. The vice-chairs have mainly circuit-based responsibilities.) It appears that our system is working, since you have us ranked second in number filed, with a success rate of over 30%.

One quibble: I’m surprised to see you offer Booker as an example of our support for a petition. The government was petitioner in that case; we filed in support of the respondent in opposition, suggesting (if my recollection is not very much mistaken) that the Court take on the issue, but in a different case. I don’t see how we get credit there.

In that article, I examine the impact of the Bar from a variety of perspectives, including the impact of the filing of amicus briefs at the cert stage. Even though the number of cases granted review and the number of paid petitions has gone down during the past several decades, the number of amicus briefs filed in support of certiorari has not gone down. There were approximately 240 amicus briefs filed in support of 119 of the total 1906 paid cert petitions filed during October Term 1982. And, although the Court during October Term 2005 acted on only 1523, or 20 percent fewer, paid cert petitions, counsel filed 268 amicus briefs in support of petitions in 144 cases, for an absolute increase of 10 percent, and a relative increase in the rate of amicus filing of more than 40 percent. I also found a strong correlation between the number of amicus briefs filed at cert stage and the likelihood of cert being granted (although there is clearly an chicken and egg quality to drawing cause and effect conclusions). In October Term 1982, only 119 of the 1906 paid petitions had at least one amicus brief filed in support of the Court’s granting jurisdiction. However, in October Term 2005, the percentage had increased significantly, to 144 of the 1523 paid petitions did. The need for amicus support, moreover, is statistically greater than it was twenty years ago. The odds of the Court’s granting a paid petition in absence of amicus support in October Term 1982 was 5 percent, compared to approximately 2 percent today. With amicus support, however, the odds jump considerably. If there was at least one amicus brief filed in support, the odds of certiorari being granted in October Term 2005 was just shy of 20 percent. If there were at least four amicus briefs filed in support of the paid petition, the odds jumped even higher to 56 percent.

Other interesting stats on amicus: The percentage of cases with an amicus brief filed on the merits has increased during the past fifty years from 23% to 96% in OT05. The average no of amicus briefs filed on the merits has gone from .5 to 9. As a result, even while the Court’s docket has more than halved since the mid 1980s, the total number of amicus briefs filed per Term on the merits has increased from just shy of 500 to the mid 600s. After all, one has to do something with all the Supreme Court practices out there.

My plan is to place the forthcoming article on SSRN soon for those interested. When I do, I will let SCOTUS Blog know so they can post a link if there is broader interest.