Academic journal article Justice System Journal

The Supply of Amicus Curiae Briefs in the Market for Information at the U.S. Supreme Court

Academic journal article Justice System Journal

The Supply of Amicus Curiae Briefs in the Market for Information at the U.S. Supreme Court

Article excerpt

We argue that the Supreme Court's expressed and latent demand for information on the availability and implications of legal policy alternatives will affect the supply of information provided to the Court by organized interests. An analysis of the annual growth in amicus filings at the Court during the 1949 through 2008 terms largely supports our specific hypotheses. The rate at which the Court cites amicus briefs and shifts in the Court's ideological location or agenda exert a positive effect on the growth of amicus filings, while the evidence for the effect of dissensus is mixed. We further show that the supply of briefs does not affect the Court's expressed or latent demand for information.

KEYWORDS: amicus curiae, information, Supreme Court, organized interests

One of the defining features of the modern U.S. Supreme Court is the heavy involvement of organized interests, typically through the filing of amicus curiae briefs. In the 2008 term, for example, 455 amicus briefs were filed by organized interests, broadly defined.1 These briefs allow interests to "lobby" the Court in an effort to influence the legal policy established by this key institution (Barker 1967). To this end, amicus curiae briefs contain arguments and information about the types of legal policies the Court could adopt and the likely implications of these policies. There is considerable variation, however, in the number of these briefs filed each term, meaning that there is an ebb and flow to this supply of interest-provided information.

What explains this longitudinal variation in the supply of amicus briefs? Prior work on the filing of these briefs models the decisions of specific organized interests to lobby the courts (e.g., Hansford 2004a; Scheppele and Walker 1991) and examines determinants of the number of briefs filed at the case level (Salzman, Williams, and Calvin 2011) but does not address the overall trends in this form of advocacy activity.2 We take a step back from this type of individual-level approach and adopt an institutional, macro-level vantage point in an effort to develop an explanation of the most basic aggregate-level pattern in organized interest lobbying of the Supreme Court-the variation in total volume of amicus curiae filings.

We forward a loosely market-based theory of lobbying in which organized interests are the suppliers of information and the Court is the consumer. The greater the Court's demand for information, the more the Court will "pay" for this information by implicitly granting a degree of influence over its policy, and the more interests will supply information by filing amicus curiae briefs. In our stylized account, the Court's demand drives the supply of amicus briefs, but we also test whether the causal arrow might point the other direction.

By furthering our understanding of the overall levels of interest involvement at the Court, this research touches on issues central to the study of U.S. judicial institutions. According to Epstein (1991, 354), explaining longitudinal variation in organized interest involvement at the Supreme Court "might reveal a great deal about the Court as an evolving institution." Organized interest involvement particularly highlights the political component of the Court's institutional development. Furthermore, the amount of interest activity at the Court has implications for the general information environment in which the Court operates when making critical decisions on the meaning of the Constitution or the application of federal laws.

This study also seeks to contribute to the emerging, broader literature on the supply of and demand for lobbying, which has been somewhat hamstrung by data limitations. Studying aggregate trends in amicus curiae brief filings provides information about the dynamics of organized interest lobbying efforts that may be difficult to obtain in the context of other political institutions. Amicus curiae briefs represent lobbying efforts that can be readily observed over a substantial time span, unlike organized interest contacts with legislators or bureaucrats. …

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