Amici Curiae during the Rehnquist Years

By Owens, Ryan J.; Epstein, Lee | Judicature, November/December 2005 | Go to article overview

Amici Curiae during the Rehnquist Years

Owens, Ryan J., Epstein, Lee, Judicature

With the end of the "Rehnquist Court," observers of all ideological stripes are beginning to opine on the principal legacy of the era. Is it the "resurrection" of federalism? A resurgence of judicial supremacy? The expansion of gay rights? A dramatically reduced plenary docket? The attention to foreign law sources? A growing wariness of the death penalty? Bush v. Gore (2000)?

To this list, the astute Court watcher, Linda Greenhouse, has added a less apparent candidate: a group of justices "primed and willing to listen" to arguments made by "skilled" advocates. In Greenhouse's account, the Court's consideration of the claims of attorneys and amid curiae-especially claims about the consequences of its decisions-explains why even some of its more conservative members were willing to uphold the Family and Medical Leave Act,1 to retain state programs that fund legal services for the poor,2 to allow universities to take race into account in admissions decisions,3 and to reconsider whom the state may legally execute.4 A particularly compelling example of her thesis, Greenhouse suggests, is Lawrence, v. Texas5 in which the majority struck down same-sex sodomy laws:

The [amicus curiae] briefs proved unusually enlightening for the Court. While victory has a thousand fathers, some of these briefs were particularly important..: an international brief, filed by Harold Koh of Yale Law School to inform the Court of legal developments in other Western judicial systems and demonstrate the error of the Bowers [v. Hardwick] majority's generalizations about how "Western civilization" regards various sexual practices; briefs by professors of history and by a coalition of gay rights groups led by the Human Rights Campaign, likewise demonstrating that the assumptions in Bowers about the historical treatment of gay people were also incorrect; and briefs describing the demography, lives, and aspirations of the gay community in ways that underscored how out of synch with current perceptions and realities the Bowers opinion, and the premises behind it, had become. The National Lesbian and Gay Law Association filed one such brief, and the American Psychological Association filed another. There were also important briefs from the American Bar Association and two libertarian organizations that the Court recognized as repeat players, the Cato Institute and the Institute for Justice.6

Why was the Rehnquist Court especially (and perhaps unusually) attentive to arguments offered by groups and other interested third parties? Greenhouse offers a number of possibilities, not the least of which was the Court's concern with "its own institutional legitimacy"7 in the wake of Bush v. Gore.8

Greenhouse, of course, is not the first to draw attention to the importance of "good lawyering"9-although the extent to which legal arguments and briefs submitted by the parties or amici curiae actually affect the justices is hotly debated in academic circles. Some social scientists, most notably Jeffrey A. Segal and Harold J. Spaeth,10 assert that justices make decisions based on their own political values vis-à-vis the facts raised in cases; attorneys' arguments, the preferences and likely reactions of Congress, public opinion, and so on have little bearing on their votes. Other commentators reject this view in part or in full. Epstein and Knight, for example, claim that if justices desire to etch their policy preferences into law, then they require information about how actors in a position to thwart those preferences may respond to their decisions.11 Not only can amici supply such information but their sheer numbers may also convey the extent to which legal and political communities support (or oppose) particular policies.

The goal of this article is not to join this controversy. Nor is it to assess Greenhouse's claims about the importance of good lawyering during the Rehnquist Court era. Taking on either would require an entire issue or two of Judicature. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Cite this article

Cited article

Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Amici Curiae during the Rehnquist Years


Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

    New feature

    It is estimated that 1 in 10 people have dyslexia, and in an effort to make Questia easier to use for those people, we have added a new choice of font to the Reader. That font is called OpenDyslexic, and has been designed to help with some of the symptoms of dyslexia. For more information on this font, please visit

    To use OpenDyslexic, choose it from the Typeface list in Font settings.

    OK, got it!

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search


    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.