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. …