Academic journal article Justice System Journal

Assessing the Anecdotes: Amicus Curiae, Legal Rules, and the U.S. Supreme Court

Academic journal article Justice System Journal

Assessing the Anecdotes: Amicus Curiae, Legal Rules, and the U.S. Supreme Court

Article excerpt

The support of amicus curiae may increase slightly the probability that the U.S. Supreme Court adopts the legal policy suggested by a litigant, but amici alone are rarely the source of legal doctrine. When amici echo the litigant's legal policy, however, they enhance the likelihood that the policy is chosen. Anecdotes that suggest that organized interests have a straightforward effect on Court policymaking appear to be just that-anecdotal. It seems instead that amici's influence on legal policy is conditional on their connection with litigants, and that they have-and may want-a less direct effect on Court policymaking than the literature suggests.

KEYWORDS: amicus curiae, U.S. Supreme Court, legal rules

When the United States Supreme Court ruled in Mapp v. Ohio, 367 U.S. 643 (1961) that state prosecutions could no longer rest on evidence seized in violation of the Fourth Amendment, it revolutionized criminal proceedings. Though certainly noted for this impact on the legal landscape, political scientists frequently cite Mapp, in which the Court's decision rested on the suggestion of the American Civil Liberties Union (ACLU) rather than the parties, as evidence that amicus curiae ("friends of the court") exert important effects on judicial decision-making. Indeed, along with Craig v. Boren, 429 U.S. 190 (1976), Webster v. Reproductive Health Services, 492 U.S. 490 (1989), and Teague v. Lane, 489 U.S. 288 (1989), scholars have pointed to Mapp as indicative of the considerable impact interest groups can have on legal policy (Collins 2008, 2004; Samuels 2004; Epstein and Knight 1998; Epstein and Walker 1995; Epstein and Kobylka 1992).

Nevertheless, it remains unclear whether these cases are merely illustrative anecdotes or exemplify a broader phenomenon of organized interests systematically and directly altering the law. In this article, I address this question with an empirical study of whether and how amicus curiae influence the selection of the legal rules on the U.S. Supreme Court.1 In so doing, I discover complexities in this relationship that contribute to our understanding of the development of legal policy, the goals of groups who appear before the Court, and the process of judicial decision-making.

The article proceeds as follows: I first argue for conceptual distinctions among case outcomes, arguments, and legal rules, and I suggest that to understand fully the impact of amici on Court policymaking, we must study rules. I then present two means by which amici can influence legal policy: offering a rule not also suggested by a party or offering the same rule as the party whom the amici supports. In the empirical section, I demonstrate that, although they are free to do so, amici rarely offer their own rules and that, even when it can, the Court almost never adopts these rules. When amici echo the litigant's rule, however, their support may increase the likelihood that rule is favored by the justices.

The findings demonstrate that amici do influence the policy of the U.S. Supreme Court with legal rules, but that the influence is largely conditional on their connection with litigants. That their effect is constrained in this way suggests that the power of organized interests in directly shaping legal policy should not be overstated: their influence appears to occur primarily through the support provided to the litigants, rather than through the more straightforward route exemplified by Mapp and other cases.


To clarify exactly how amici can influence Court policymaking, I draw distinctions between a case outcome, an argument, and a legal rule. Though the literature often uses these concepts interchangeably, it is important to elucidate the differences, particularly when studying the "policy" promulgated by the high court. By focusing on legal rules, I hope to provide a more precise analysis of the role of organized interests.

When the Court confronts a case, it must determine not only who wins and loses but also what legal rule justifies that result (Carrubba et al. …

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