The Early Brief Gets the Worm—A Commentary by Adam Chandler ’11
The following commentary was published on Slate on December 5, 2008.
The Early Brief Gets the Worm; Liberal groups are ceding a key way to influence the Supreme Court.
By Adam Chandler ’11
In its last term, the U.S. Supreme Court heard fewer cases than it has in any single term in more than 50 years. This means that getting your case heard at the high court is about 10 times harder than getting into Harvard. How do you up your odds? Just as a recommendation letter from a well-placed alum gets attention from an admissions office, a supportive brief from an advocacy group, sent to the court at the stage when it's deciding whether to take a case, flags a case for the justices.
Each year, parties that have lost in the lower courts file about 9,000 petitions for a writ of certiorari (cert for short) in which they beg the court to hear them. The Supreme Court has nearly complete discretion over which cases it will take. Last term, only 69 cert petitions resulted in arguments before the justices. The lucky few were more likely to have gotten a helping hand from a friend-of-the-court brief, filed by an outside group with an interest in the case's outcome. Influence, in this sense, is all about timing. Amicus briefs, as they're known, tend to pile up on both sides of a case once the court takes it, all competing for the justices' attention. But the amicus briefs filed before the court grants cert are much rarer, and, accordingly, more influential. Yet this is a tool that liberal groups often fail to use.
The private groups and advocacy organizations that most frequently urge the court to take a case are overwhelmingly pro-business, anti-regulatory, and ideologically conservative. For liberal groups to cede the cert-stage battleground is to forfeit a key phase of the war. When left-leaning groups ignore an opportunity to tell the court to hear the cases most likely to be decided in their favor, they are doing their causes a disservice.
Here are the numbers: Between May 2004 and August 2007, nearly 1,000 private organizations filed cert-stage briefs. Only a few make it a habit—just 16 groups filed eight or more early-bird briefs a piece. Ten of those top amici serve business interests and conservative causes. They include the Products Liability Advisory Council, the Pacific Legal Foundation, and the National Association of Manufacturers. And the king of the amici, the U.S. Chamber of Commerce, filed 55 briefs over the period studied, or about 17 each year.
Among the top 16 cert-stage amicus filers, the National Association of Criminal Defense Lawyers is the only one that might be considered a liberal interest group. It ranked second to the Chamber of Commerce with 33 briefs. The American Civil Liberties Union tallied just two cert-stage amicus briefs during the three years under review.
Meanwhile, the right-leaning major players pushed the Supreme Court to take some of its biggest recent cases, including cases on school desegregation plans in Seattle and Louisville, punitive damage limitations in tobacco cases, and the constitutionality of denying federal funds to universities over the military's policy toward gays. In all, the conservative groups in the top 16 succeeded in getting the cases they were pushing heard between 20 percent and 40 percent of the time. That's compared to the sub-1 percent success rate of the average petition.
It's safe to presume that many of the petitions these groups threw their weight behind might have been granted without them. Still, empirical studies show a link between filing a cert-stage amicus brief and getting a case heard. In a 1988 study, political science professors Greg Caldeira and Jack Wright of Ohio State University controlled for the "full array" of well-known influences on the court's decision to hear a case—like a split in the lower courts or the participation of the U.S. solicitor general—and found that early-bird amicus briefs "substantially increase" the likelihood that a case will make the court's docket. The chief deputy clerk of the court has even said that amicus briefs are one of four explicit factors the court weighs in deciding whether to grant a case. (The others are the Supreme Court's jurisdiction to hear the case, lower-court conflicts, and the presence of competing petitions on the disputed legal issue.)
If early-bird amicus briefs can alter the character of the Supreme Court's docket, why don't liberal groups come up with more of them? Pro-business groups may have more money to pay for the briefs (which, after all, lawyers are paid to write). Perhaps the rise of specialized Supreme Court practices in major law firms means that more lawyers are on the lookout for work that will benefit their big-business clientele. It is likely, too, that the conservative groups want to get as many cases as they can before this Supreme Court because it's increasingly viewed as not just conservative, but business-friendly.
The ACLU has made an "organizational decision not to file cert-stage amicus briefs, except in extraordinary circumstances," according to Legal Director Steven Shapiro, as an "allocation-of-resources decision." Instead, the ACLU files amicus briefs in 12 to 15 cases a year once the court is deciding between the parties (as opposed to deciding whether to take case). But by that point, research suggests, the briefs' influence is diminished.
Some liberal groups may be trying to keep a low profile on cases that matter to them but that they think they'll lose (though Shapiro says that's not the ACLU's thinking). If that's the concern, should liberal advocates focus on filing briefs in opposition to cert to keep the current Supreme Court away from the cases they see as stinkers? In fact, only one brief of 270 filed by the top 16 amici opposed the taking of a case. And perhaps that's because such a strategy is ill-advised. The Caldeira and Wright study shows that the chances of a case being heard by the court increase with the number of amicus briefs filed, whether or not they recommend or discourage granting the case. In fact, amicus briefs in opposition to cert significantly increase the chances a case will be granted cert. The content of the briefs appears to matter much less than their presence.
But that's no justification for liberal groups to sit on their hands. They can find areas of law in which this Supreme Court (in particular, Justice Kennedy) is likely to side with them. See recent decisions on immigration, the death penalty, the environment, and gay rights. Even in less-friendly territory, they can find petitions presenting questions and fact patterns more favorable to their side and then tell the court why those cases would be better vehicles to decide an issue than cases being pushed by their conservative counterparts. (The National Association of Criminal Defense Lawyers used this move in the famous case on criminal sentencing, U.S. v. Booker.)
The point is that if liberal groups must play defense, they should play smart defense. Staying silent on the sidelines, we know, just doesn't work. A case is won or lost on the merits, but a cause may be lost long before.
Only private organizations representing some constituency or legal interest were included in this review. 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.
Adam Chandler, a Rhodes Scholar and first-year law student at Yale Law School, is a former writer for SCOTUSblog, a blog covering the U.S. Supreme Court.