Information Provision, Organizational Constraints, and the Decision to Submit an Amicus Curiae Brief in a U.S. Supreme Court Case

Article excerpt

How do organized interests select the Supreme Court cases in which to file amicus curiae briefs? Starting with the assumption that organized interests pursue policy influence, I argue that an organized interest will submit amicus curiae briefs in the cases that provide the greatest opportunity for the interest to influence the content of the majority opinion. Membership-based interests, however, will also have to consider the effect of their case-selection decisions on their ability to attract and retain membership support. I test my hypotheses with data on a large sample of organized interests and their amicus curiae brief filings in the 1991-1995 Supreme Court terms. The results of this analysis provide support for my hypotheses and indicate that organized interests seek out cases in which the justices are relatively information-poor. Membership-based interests also choose cases that allow for visible and apparently "successful" participation.

The increase in organized interest involvement in the judiciary has been paralleled by a growth in the number of studies addressing the causes and implications of this involvement. While some scholars examine the effect of organized interest involvement on judicial behavior (e.g., Caldeira and Wright 1988; Epstein and Rowland 1991; Songer and Sheehan 1993; Spriggs and Wahlbeck 1997), others attempt to explain why organized interests choose to incorporate litigation into their repertoire of lobbying activities (e.g., Conner 1968; Kobylka 1991; Olson 1990; Scheppele and Walker 1991). What this latter line of research has not done, however, is develop an explanation for how organized interests choose the specific court cases in which to participate. In the one published study that systematically investigates the case -selection decision, Tauber (1998) analyzes the decision of the NAACP's Legal Defense Fund to sponsor litigation in capital punishment cases heard in the U.S. Courts of Appeals and finds very little support for the influence of "legal" variables (e.g., whether aggravating circumstances were present or not) on the LDF's choices. While it is important to understand the litigation patterns of a high-profile organized interest such as the LDF, it is impossible to draw generalizations regarding the behavior of the organized interest population when studying only one interest. Thus, we know little about the factors that explain how organized interests select the court cases in which to participate.

Even outside of the context of the judicial branch, interest group scholars have not paid much attention to explaining how organized interests select the specific situations in which to engage in lobbying activity. Recent studies, for example, analyze the decision to lobby a specific member of Congress (e.g., Hojnacki and Kimball 1998), but generally do not systematically investigate why an interest may or may not lobby a member of Congress during one specific policy debate as opposed to another.

To begin to address this gap in the literature on the involvement of organized interests in the Courts as well as the broader body of research on interest group lobbying strategies, I develop a theoretical explanation for how organized interests select the U.S. Supreme Court cases in which to file amicus curiae briefs. Starting with the assumption that organized interests pursue policy influence, my argument is that organized interests will submit amicus curiae briefs in the Court cases that provide the greatest opportunity for the interest to influence the legal policy established in the majority opinion. This potential to influence the Court's policy outputs will depend on the extent to which the Court needs externally provided information. The second element of my argument is that membership-based organized interests (as opposed to institutional interests) will face an important constraint when selecting Court cases. Membership-based interests will have to consider whether or not the case in question allows for visible and apparently successful lobbying activity, which makes it easier to attract and retain membership support. …