In recent years state and local governmental interest groups have become active in filing amicus curiae briefs before the U.S. Supreme Court. During the same period, the Court has demonstrated a renewed interest in federalism issues. A review of the state and local government interest group participation in thirty-seven cases between 1995 and 1998 shows that those organizations were more unified in cases raising issues of intergovernmental policy and program implementation than in the major federalism disputes. This article suggests that the increase use of the courts to settle technical intergovernmental issues portends new roles for state and local officials.
This article explores recent efforts of subnational governmental associations to influence decisions of the United States Supreme Court through amicus curiae briefs and examines thirty-seven cases decided between 1995 and 1998 in which the State and Local Legal Center-part of the Academy of State and Local Governments-filed amicus briefs. It then examines six high profile federalism cases during the period in which the Center was generally less involved. The focus is on the issues raised, the level of success of the Center, and the relationship between the politics of amicus briefs and the broader political system.
The mid-1990s have witnessed some dramatic decisions by the United States Supreme Court that have expanded the authority of states and limited the power of Congress. In U.S v. Lopez 115 S.Ct. 1424 (1995), the Court declared unconstitutional a federal stature (the Gun-Free School Zone Act of 1990) on the ground that Congress had exceeded its power to regulate commerce among the states. In Printz v. U.S. 117 S.Ct. 2365 (1997), the Court voided portions of another measure (the Brady Handgun Violence Prevention Act of 1995) because it imposed federal duties on state executive officers so as to impair their independence. These and other decisions have significantly altered the premise of Garcia v. San Antonio, 469 U.S. 528 (1985) in which the Court held that states and localities should look to the political process not to the courts to protect their place in the federal system. That decision now seemed of less significance.
As the Supreme Court entertained major federalism disputes, an important development was the way in which the subnational governments presented issues to the courts. Until the early 1980s, states and localities rarely filed amicus curiae briefs. A plaintiff or respondent jurisdiction fighting a case having major repercussions for a broad category of governments and their officials typically found little formal support from sister jurisdictions in the Supreme Court. To illustrate, the Court in Maine v. Thiboutot 448 U.S. 1 (1980) significantly broadened the coverage of Section 1983 of the Civil Rights Act of 1871 by holding that the Section provided an enforcement mechanism for rights provided citizens in all federal statutes, not only civil rights measures. Although the decision had general applicability to the states, when Maine defended its position in the Supreme Court, only one other state (Pennsylvania) contributed an amicus brief on its behalf (Baker and Asperger, 1982:371).
Another problem was the perception that the advocacy of subnational governments needed improvement. A comment by Justice Powell in a 1974 address to federal circuit judges that, in criminal cases, state and local governments were "frequently outgunned and overmatched by the defense" was widely quoted (Baker and Asperger, 1982:368). The advocacy problem seemed to be a factor in the sometime poor record compiled by state and local governments when pitted against organizations with greater experience in Supreme Court litigation. One study determined that, in the period 1976-79, the American Civil Liberties Union filed amicus briefs in about three-quarters of the cases while the state and locality won in less than one-quarter (Ibid. …