WHO Participates as Amici Curiae in the U.S. COURTS OF APPEALS?

Article excerpt

In the past two decades, scholars have made remarkable advancements in the slate of knowledge about the U.S. courts of appeals. We now have a better understanding of the political nature of their stalling1 and the historical transformation that ? belower federal court selection process underwent.- We also have a better grasp on the consequences of the organizational design of diese courts' and their position in the federal judicial hierarchy.' Further, we have a deeper appreciation for the ways in which judges on these courts make law" and how they influence the behavior of other actors.'' In sum, the characterization of the courts of appeals as "among the least comprehended of major federal institutions" is now much less apt a description of the state of knowledge regarding diese courts than it was when Howard penned those words almost 30 years ago.7

This is certainly a welcome development given the opportunity the courts of appeals afford for advancing our understanding of the judiciary beyond what we know from the exclusive focus on the singular institution that is die U.S. Supreme Court. Further, it is a long overdue development in light, of the importance of the courts of appeals as legal institutions in their own right. As Klein demonstrates, these courts make law in meaningful ways, particularly when the Supreme Court has not yet spoken." Moreover, for all practical purposes, the courts of appeals are the appellate courts of last resort in the federal judicial system given how few appeals are disposed of by the Supreme Court and how many appeals are disposed of by the courts of appeals.'

Though the state of knowledge regarding the courts of appeals has grown impressively, it has not grown uniformly; rather, "there continue to be important areas about which we remain stubbornly and conspicuously uninformed.""1 This includes amici in the courts of appeals. Though we know a great deal about amici curiae in the Supreme Court - including the types of groups that Hie amicus briefs, why they participate, die nature of their arguments, and if amicus participation matters for case outcomes" - what we know regarding amici curiae in the courts of appeals is much more limited.'1'

This is unfortunate for several reasons. First, in terms of raw numbers, more amicus participation occurs in the courts of appeals than in the Supreme Conn.1'1 Of course, in terms of the percentage of cases with amicus participation, amici are much more common in die Supreme Court. Nonetheless, the analysis of amici in the Supreme Court stili represents an analysis of the minority of all amici participating in tit e federal system. Second, and more importantly, case history (which includes amicus participation in earlier stages) matters for understanding what trailspires at the Supreme Court level. That is, understanding atnicus activity at the court of appeals level is enormously informative for understanding amicus activity al lhe Supreme Court level.

Indeed, a nontrivial number of amici first enter into the legal ["ray at the court of appeals level. Provided a case is then appealed to the Supreme Court, these amici frequently continue their participation al die certiorari and/or merits stages.M Moreover, recent rest-arch indícales that amicus participation in die courts of appeals plays a substantial role in shaping the Supreme Conn's agenda-setting decisions. For example, in dici r analysis of the Burger Court, Hagle and Spaeth report between one in four and one in five docketed cases with participation by amici in lhe lower court are accepted for review (as compared to lhe mere 1 in 20 peli t ions accepted overall).1' Thus, absent an understanding of amici curiae in the courts of appeals, we are left with only a partial comprehension of this most important interest group litigation strategy. To be sure, understanding amicus curiae participation in the Supreme Court is important, but understanding such participation in that conn should not end die inquiry. …