The IADC Amicus Brief Program: Its Increasing Success and Influence
Sungaila, Mary-Christine, Defense Counsel Journal
ONCE rare, amicus curiae or "friend of the court" briefs are now filed in the majority of appellate cases heard by the United States Supreme Court and various state supreme courts. In the United States Supreme Court, amicus briefs were filed in thirty-five percent of the Court's cases in the 196-566 term; by 1995, one or more amicus briefs were filed in nearly ninety percent of the Court's cases. (1) An analysis of the 1999 to 2008 terms showed that in civil cases the average filing rate for amicus briefs was 92.4% (with a high of 100% amicus participation in all civil cases in the 2007 term). (2) The number of civil cases before the Court each term ranged from thirty-nine to sixty-one; the total number of amicus briefs filed each term in those cases ranged from 344 to 627. (3)
"Historically, state courts were more likely than the U.S[.] Supreme Court to limit the role of amicus participation in appeals." (4) Nonetheless, the number of amicus briefs filed in state high courts tripled in the 1980s. (5) The growth in use of amicus briefs has not been uniform across all states, however. The frequency of amicus participation between 1960 and 2000 was highest, according to one study, before the Florida, Massachusetts, North Carolina and Washington high courts; two previous studies revealed the top five states for amicus participation to be California, Michigan, New Jersey, New York, and Ohio. (6)
My own survey of amicus filings in the California Supreme Court reveals high amicus participation in the past decade. The amicus filing rate was 59.7% from 2000 to 2009 in civil cases; out of 707 cases decided by the court, 422 had one or more amicus briefs. (7) The average number of amicus briefs filed in each case is also increasing. In the California Supreme Court, 1,868 amicus briefs were filed in 422 of the 707 civil cases decided by the court between 2000 and 2009. (8) Indeed, the California Supreme Court has even invited the submission of amicus briefs in some cases. (9)
With increased amicus participation has come increased amicus influence. Amicus briefs have repeatedly provided the United States Supreme Court with information and legal theories that have influenced the Court's decisions. The majority opinion in Roe v. Wade (10) expressly referred to positions urged by amicus groups and relied heavily on historical, social, and medical data provided by amici. In the companion case of Doe v. Bolton, (11) the majority expressly relied on data provided by amici showing that facilities other than hospitals are adequate to perform abortions, and rejected the state's contrary argument. In Grutter v. Bollinger, (12) the Court upheld the race-based admissions policy of the University of Michigan Law School; at oral argument and in the Court's decision, the justices referred to and relied on the amicus brief of retired military officers. (13) And, in the 2013 term, the Court advised counsel for parties in a case in advance of oral argument that they should be prepared to address an argument made in an amicus brief filed in the case.
The Court's citation of amicus briefs has also increased. According to one study, United States Supreme Court justices directly mentioned at least one amicus brief in eighteen percent of the cases in which amicus briefs were filed between the 1969 and 1981 terms. (14) Another study reveals that, "of all [United States Supreme Court] opinions published between 1986 and 1995, approximately fifteen percent cited at least one amicus brief by name, and thirty-seven percent referred to at least one amicus brief' without citing or naming it. (15) More than sixty-five percent of the amicus briefs filed in the United States Supreme Court in 1992 contained information not found in the briefs of the direct parties. (16)
A survey of amicus brief filings in State supreme courts showed that amicus briefs were acknowledged or cited in thirty-one percent of cases, and arguments made in amicus briefs discussed in eighty-two percent of the cases sampled. …