Cert.-stage Amicus Briefs: Who Files Them and To What Effect?
Even before the Justices have decided whether to hear a case, the U.S. Chamber of Commerce is willing to step in and state its interest—more willing, in fact, than any other organization.
A review of certiorari-stage amicus curiae briefs (i.e., amicus briefs filed at the petition stage, before the Justices grant cert.) filed between May 19, 2004 and August 15, 2007 shows that the Chamber of Commerce filed 55 such briefs, about 17 per year. Over the three-and-a-quarter years studied, 986 parties filed cert.-stage amicus briefs, averaging 1.666 briefs per party. Of those 986 amici, 259 filed 2 or more, and 118 filed 3 or more. Not every party was included in the count, as we were most interested in the impact of private groups and advocacy organizations pushing cert. petitions; those excluded from the count are listed at the bottom of this post.
The top sixteen parties each filed 8 or more briefs, and a list of those groups, along with the success rates of the cases in which they filed (up to Tuesday’s orders list), is here. The success rate is calculated as a percentage of the party-supported petitions that were either granted or denied. (Note that only amicus briefs in support of a petition are considered here; the Washington Legal Foundation filed as an amicus in opposition to the petition in Padilla v. Hanft (05-533) and was not counted in that instance.) Petitions supported by these top sixteen groups included many of the Court’s most high-profile cases over the last few years, such as US v. Booker, MGM v. Grokster, PICS v. Seattle Schools, and Rumsfeld v. FAIR.
Notably, the list of top amici is dominated by pro-business and anti-regulatory groups—such groups hold over half the slots in the top sixteen. The prevalence of these groups may result from their having an enhanced financial ability to pay for many cert.-stage briefs as compared to other groups; the businesses and industries they comprise and represent may also be more eager to jump in at the petition stage when their bottom lines are at stake (as opposed to an ideological group); and it’s possible, too, that these groups want to get as many cases as they can before a Supreme Court that is being increasingly viewed as business-friendly (e.g., see here). As a corollary, the absence of liberal or left-leaning groups is striking (with the National Association of Criminal Defense Lawyers as a narrowly-focused exception). The American Civil Liberties Union, for instance, tallied just two cert.-stage amicus briefs during this time.
A full quarter of the sweet sixteen are regionally-named legal foundations. Ranking third, fourth, seventh, and eighth overall in numbers of cert.-stage amicus briefs filed, the Washington Legal Foundation filed 26 briefs, the Pacific Legal Foundation filed 25, the New England Legal Foundation filed 11, and the Mountain States Legal Foundation filed 10. Their success rates were relatively high, ranging from about 18% (New England) to 39% (Washington). The Washington Legal Foundation, in fact, edged out the National Association of Home Builders (36%) to have the highest grant percentage of the top sixteen.
The only two groups in the top sixteen to be completely shut out were the Reporters Committee for Freedom of the Press (9 briefs in cases denied cert.) and the Society of Professional Journalists (8 briefs). Additionally, the Associated Press filed seven cert.-stage amicus briefs in cases that were all denied. These three groups, along with many other media organizations, often file amicus briefs together, so these are not 24 distinct denials, but rather just nine. Even so, since May 2004, these media groups hold the distinction of putting the most effort into pushing petitions while having no success.
Of course, the influence of a cert.-stage amicus brief should not be overestimated from the success percentages of the top sixteen groups. While the overall success rate of the groups in the chart is far higher than the success rate of a cert. petition in general (about 27% compared to a general success rate of less than 5% for a paid petition), it also stands to reason that the petitions they throw their weight behind would alone have a reasonable chance of being granted. Moreover, the 27% overall success rate is inflated by the instances in which multiple groups from the top sixteen filed briefs at the cert. stage in the same granted cases.
Nevertheless, political science professors Greg Caldeira and Jack Wright, authors of some of the only empirical studies of cert.-stage amici, have closed in on a causal link between those amici and the Justices granting cert. They have shown that even when other well-known influences on cert. decisions are controlled for, the briefs of cert.-stage amici, whether in support of granting the petition or not, “substantially increase” the likelihood that the Court will grant. (Caveat: the papers cited are based on the OT82 term, when twice as many cases were granted as today.) Caldeira and Wright’s papers describe cert.-stage amicus briefs as “costly signals” of a petition’s importance, arguing that simply by meeting the expense of the filing, amici demonstrate the interest in and significance of a particular case. Of the 43 cases granted so far for October Term 2007, 15 of them (35%) were supported at the petition stage by amici that were included in this review.
Generally, participation as an amicus at the cert.-stage is less common than participation at the merits stage, though Caldeira and Wright suggest that the influence of amici is diminished after the case has been granted. The American Bar Association, for instance, filed 20 merits-stage amicus briefs compared to only 3 cert.-stage amicus briefs in the time frame reviewed here. Of course, granted cases are much fewer in number and more visible than petitions, and the stakes for potential amici are raised in a case that has been granted. Part of the discrepancy also results from amici having far longer to consider and file briefs for the merits stage than for the cert. stage. (For the latest rules on filing cert.-stage amici, see here.) But the generalization does not hold for every organization, including the cert.-stage champion, the Chamber of Commerce.
Not every amicus was counted in the review, and the excluded groups include the United States; individual states and cities; ad hoc groups of professors, elected government officials, scientists, and citizens; state attorneys general and district attorneys; governments of foreign countries; and individual citizens. It should also be noted that while the amicus brief count for the top sixteen parties has been cross-verified with the Westlaw Supreme Court docket database, the other data has not been; thus, a particular party’s count might be off by one or even two briefs if those briefs were for whatever reason not entered into the Westlaw Supreme Court petitions database.
Fascinating stats and (happily) consistent with some of my own that will be published later this year in a forthcoming article in the Georgetown Law Journal: Advocacy Matters Before and Within the Supreme Court: Transforming the Court by Transforming the Bar.
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.
Comment by Richard Lazarus — September 27, 2007 @ 6:31 pm
Thanks, Adam, for this most interesting investigation. As a vice-chair of the Amicus Curiae Committee of the Nat’l Ass’n of Criminal Defense Lawyers who is a participant in some of our cert-stage screening efforts, I am pleased to see that your research appears to vindicate our strategy. I wonder if any other filer on your list operates 100% on volunteer efforts, with no professional legal staff involved, as does NACDL.
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.
Comment by Peter G — September 27, 2007 @ 9:17 pm
Thanks, both Richard and Peter, for your interesting comments. In response to your quibble, Peter, you recall quite rightly that the NACDL cert.-stage brief in Booker was complicated–it addressed four petitions. (It’s the most complex one I remember coming across, in that respect.) It recommended that the Court grant cert. in Booker (with the government’s questions reframed) or Pineiro v. US (04-5263), and also grant cert. in Bijou v. US (04-5272), but deny cert. in US v. Fanfan (04-105) before judgment.
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).
Comment by Adam Chandler — September 27, 2007 @ 10:41 pm