A Sophisticated Friendship:
Organized Interests, Amicus Briefs and the
Democratic Link in the
Supreme Court of the United States
Udi Sommer, Lecturer (American Assistant Professor)
Department of Political Science, Tel Aviv University
Ramat Aviv, Tel Aviv, Israel
[email protected]
+972 3 6409231
Katie Zuber, Doctoral Candidate
Rockefeller College of Public Affairs and Policy
Department of Political Science
University at Albany: State University of New York
Jonathan Parent, Doctoral Candidate
Rockefeller College of Public Affairs and Policy
Department of Political Science
University at Albany: State University of New York
Abstract
Amicus briefs play a crucial role in American democracy; they relay popular preferences to the
federal judiciary, an otherwise institutionally insulated branch of government. Indeed, research has
shown that briefs influence the decisions of Supreme Court justices at cert and on the merits. Yet,
we know relatively little about the reasons that lead interest groups to file those briefs, particularly
during cert. We contend that the Court’s friends are rational in the sense that the decision to file is
a result of a systematic attempt, on the groups’ part, to maximize utility. In addition, we also seek
to explain why cases attract amici attention. To test whether groups file at cert and how many
briefs are filed, we use an original database based on petitions for review from the October Term
2004. Case salience, media coverage, the content of the case, an amicus brief by the Solicitor
General and appeals to groups’ constituencies all influence this critical conduit of democratic
input.
Introduction
Amicus briefs are a key link between popular preferences and the single unelected branch of
government, the judiciary. Via those briefs, the needs and choices of a wide range of
constituencies are articulated and brought to the attention of federal judges in general and Supreme
Court justices in particular. The effect of those briefs on Supreme Court decision making cannot
be overestimated. For instance, their content notwithstanding, as the number of such briefs
increase, justices are more likely to include a petition for certiorari in their plenary docket
(Caldeira and Wright 1988). Furthermore, the content of those briefs influences the public policy
the Court makes in opinions registered by the justices (Collins 2008a; 2008b, inter alia).
The Supreme Court receives approximately 9000 petitions for review per term. From these
thousands of potential cases, the Court chooses approximately one hundred for plenary review.
This narrowing of the litigative stream makes the process of case selection critical for the
understanding of legal decision making. Despite a great deal of research on the importance of
amicus activity at the agenda-setting phase (Caldeira and Wright 1988; 1990), we know relatively
little about a group’s decision to file an amicus brief at cert and how this relates to the group’s
successful pursuit of policy objectives.
Recent scholarship has examined questions concerning briefs filed at the merits stage at
the Supreme Court level (Solowiej and Collins 2009; Solberg and Waltenburg 2006; Hansford
2004) or at the intermediate appeals court level (Martinek 2006). Yet, there is virtually no work
addressing the motivations of groups at cert; there is a dearth of information about what generates
this critical venue for the expression of popular will and its potential influence on the Court’s gate
keeping function. Our theoretical understanding, therefore, is incomplete. In fact, even accounts of
organized interest activity more generally are inconsistent in important ways. For instance, how
groups attempt to affect judicial decision makers is unclear. Compare, for example, Hansford
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(2004), where groups file briefs in information poor environments, supposedly to clarify issues for
justices, and Collins (2008a), where briefs cause cognitive overload. This theoretical inconsistency
obfuscates our understating of the decisional calculus of groups. In this paper, we ask how
organized interests make decisions about whether or not to file amicus curiae briefs during case
selection. Furthermore, it is the number of amicus briefs filed at cert that is known to influence
justices’ case selection (Caldeira and Wright 1988). Hence, we also examine the variables that
predict the number of amicus briefs a case would attract.
The goal of this paper is to examine these questions in depth, and in doing so also to
expand our theoretical understanding of amici activity and its role in a democracy. One example
for the democratic link under examination is the potential effect of the media; if a case attracts
media attention, which means it is salient to the public (elite and masses) and as a result interest
groups are more likely to file amicus briefs, then the groups indeed relay popular will in a way that
influences the Court. To study those questions, an original dataset with 555,389 group-case dyads
based on petitions for review from the October Term 2004 is used. Since filing an amicus brief is
costly, we expect groups to systematically consider certain variables when deciding whether to
submit a brief. Only if the expected outcome justifies the resources invested, would a group move
forward and file a brief. In the theoretical framework proposed here, groups systematically
maximize their utility and are therefore rational.i More specifically, we expect the groups to pay
heed to signals known to indicate the significance of the case, such as a brief filed by the Office of
the Solicitor General. Furthermore, to ensure the cost-effectiveness of their investment, groups
would consider the salience of the case and the media coverage it has won. Along the same lines,
to serve their goals of organizational maintenance, groups would file in cases with potential appeal
to their constituencies. Finally, groups would pay attention to case characteristics such as the
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parties to the case, its issue area and decisions at lower levels. In addition, we examine why certain
cases attract the attention of organized interests. In sum, the importance of this study is in
investigating the understudied question concerning the motivations to file briefs (in general and in
particular at cert), in comprehending the reasons why certain petitions for review attract more
briefs, and, as a result, gaining a deeper understanding of the nature of briefs as a democratic
conduit, relaying information from constituencies to decision makers.
Amicus Curiae Briefs and Supreme Court Agenda Setting
Scholars agree that when justices exercise their gate keeping capacity, they reach decisions based
on a limited set of key case characteristics (Tanenhaus 1963; Perry 1991). Cues enable justices to
separate frivolous certiorari petitions from those that warrant greater judicial scrutiny, with certain
variables expected to perform quite well as potential signalers to the Court. These variables
include dissenting opinions on the lower court and other aspects of previous case history (Long
1984; Hellman 1985; Staudt 2005; Sturley 1989; Brenner 1979; Ulmer 1972). Additionally, the
decision on certiorari is influenced by whether there is a civil liberties issue (e.g. a First
Amendment claim) or an economic issue raised by the petition, and by the sheer number of briefs
amicus curiae filed (Caldeira and Wright 1988). Lastly, participation by the Solicitor General
could also influence the decision on cert (Smith 1999; 2001; Lawless and Murray 1997; Tiberi
1993; Bailey et al. 2005).
Caldeira and Wright (1988) propose that amicus participation by organized interests
provides necessary signals about the potential significance of a case. As mentioned above, it is the
number of briefs filed, rather than their legal content, which has an impact on judicial decision
making. This is different from the case on the merits, where briefs’ content accounts for their
influence (Collins 2008a; Hansford 2004). The mere presence of amicus briefs at the cert stage
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increases the likelihood of review by drawing attention to the potential significance of a case. It
signals to justices the range of implicated parties (Shapiro 1984).
The submitting of amicus briefs by interested, though not directly related, parties to a
particular case can be seen as one method by which “outsiders,” those lacking direct access to the
Court, might participate in what Kermit Hall (1999) has referred to as the “least accessible branch”
of the federal government. Previous research has indeed considered the influence of public opinion
on the Supreme Court, and we align ourselves with those who understand amicus activity as
another possible vehicle for democratic participation (Collins 2008a). Researchers such as Barnum
(1985), Johnson and Martin (1998) and Mishler and Sheehan (1993) have tended to focus their
questions on what direct, perceptible influence public opinion has had on decisions on the merits,
or how the Court itself has shaped public opinion. Although these scholars have shown that the
Court responds directly to changes in public opinion in issue areas as diverse as birth control,
desegregation, women’s rights, and interracial marriage, they often attribute such changes to the
appointment process, electoral realignments, and/or the Court’s concern for its authority in
response to long-term societal changes. We contribute to this discussion with the idea that amicus
participation also serves as an important mechanism through which the public might influence the
Supreme Court. More specifically, we are interested in whether and how third parties
communicate popular needs and interests to Supreme Court Justices, when the latter select cases
for review. Critical predictors of amicus briefs in this context would be the salience of the case, the
media coverage it wins and whether appeal to membership is a driving concern for groups.
While research has focused extensively on the choices justices make during case selection,
there is comparatively little research in political science on the decisions interest groups make in
this context. With some exceptions, scholars have largely failed to systematically investigate the
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case-selection process from the perspective of organized interests (but see Tauber 1998; Olson
1990; Hansford 2004). This is surprising given that the extent to which the interest group can
obtain policy influence will depend on the type of case in which it is involved. Furthermore, this
preliminary stage is key for understanding how agenda setting at the national level unfolds on the
Supreme Court. Our insufficient knowledge about amici decisions at cert is underlined by the
burgeoning literature about interest group formation (Epstein 1985; Lowery, Gray, Wolak,
Godwin and Kilburn 2005), amici decisions (Martinek 2006; Solberg and Waltenburg 2006;
Hansford 2004) and their influence on the Supreme Court’s decision on the merits (Collins 2008a;
2008b; Solowiej and Collins 2009; Collins 2004; Tauber 1998) as well as in other branches of
government (Austen-Smith and Wright 1992; 1994; 1996; Hojnacki & Kimball 1998; Holyoke
2003; Ando 2003; Baumgartner and Leech 1996).
Because of resource constraints, both legal (right’s claim) and political (money, number of
supporters, and access to decision makers), case selection should be an important decision made
rationally (Olson 1990, 858). Indeed, Caldeira and Wright claimed that the cost of filing a single
amicus brief by a reputable law firm at the Supreme Court level stood at between $15,000 and
$20,000 in 1988. In recent years, the cost has increased significantly, and according to estimates
from the firm Sidley, Austin, Brown and Wood (Lynch 2004), that figure had risen to
approximately $50,000 by 2004 (corrected for inflation, the 1988 cost would be $24,000 to
$32,000 in 2004 dollars). The expenditure of such a significant amount of resources is likely to be
no small consideration for many interest groups with limited legal budgets. This is true in
particular at the cert stage, where there is no guarantee that the case in question will be reviewed.
We expect organized interests to be rational in their decision to file, paying close attention
to the implications and filing only when participation is perceived to be in the group’s best
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interest. Likewise, a petition for certiorari with such characteristics is more likely to attract more
briefs. The decision to file a brief, thus, should be a result of systematic calculation by the group.
In sum, we expect organized interests to employ the informational value of their briefs rationally,
that is, while striving to maximize utility (Epstein and Knight 1998). In the next section, we
describe in detail what variables we expect to determine the decision to file and what
characteristics increase the likelihood that a case would win more attention from groups.
Determinants of the Decision to File – Theory and Hypotheses
While Tauber (1998) opines that the act of litigating more broadly is unplanned and at times
random, we contend that scarce resources and the costliness of filing mean that groups would
display systematic rational behavior at the cert stage. Current research suggests some broad
principles regarding groups’ decisions to file briefs amicus curiae (Olson 1990, Tauber 1998;
Hansford 2004). In order to identify the conditions under which groups are more likely to file
those briefs at the cert stage, in this study we take into account a number of possible influences,
including the behavior of outside actors, internal considerations of the groups, salience, case
characteristics and the legal issue area concerned.
We start with the behavior of outside actors, and more specifically with the Office of the
Solicitor General (Nicholson and Collins 2008). Few indicators of a particular case’s importance
and likelihood of attracting the attention of justices at the certiorari stage have received more
unanimous consent from scholars of the High Court than the participation of the Solicitor General,
either as a litigant or when filing an amicus brief. Indeed, the Solicitor General plays so crucial a
role in both the Court’s decision to grant review, as well as at the merits stage, that this position
has been referred to as that of the “tenth justice” (Caplan 1987). Little evidence for the
overwhelming importance of the Solicitor General is required beyond the fact that the Court grants
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certiorari petitions in 69.78% of the cases to which the executive’s legal representative is a party,
compared to a mere 4.9% of all requests for review (Sakolar 1992).
A substantial body of scholarship exists demonstrating the importance of the Solicitor
General’s participation as a litigant, with a number of studies demonstrating that the Court is
substantially more likely to reach a decision on the merits in favor of the position advocated by the
Solicitor General (Epstein et al. 2006; Johnson 2003; O’Connor 1983). Several theories have been
put forward purporting to explain this disproportionate rate of success, with some suggesting that
the Solicitor General plays the role of legal advisor who provides the justices with valuable
information related to a particular case (Sakolar 1992). Others simply see the Solicitor General as
the ultimate “repeat player” who has, over time, accumulated substantial legal resources through
repeated interaction with the Court (Caldeira and Wright 1988; Spriggs and Wahlbeck 1997). In
either case, the president’s chief litigator clearly has a significant impact on the members of the
Court.
But the Solicitor General’s influence extends beyond participation as a litigant and the
consequent impact on the decision on the merits. Amicus briefs filed by the Solicitor General at
the certiorari stage also have a demonstrable influence on the likelihood of the case at issue being
granted review (Provine 1980; Caldeira and Wright 1988). Since the Supreme Court is
significantly more likely to grant review when the Solicitor General files an amicus brief, interest
groups should also be more likely to submit their own briefs if the executive’s top lawyer
participates in this way. In fact, the Solicitor General is often invited by the Court to file a brief
(Hansford 2004; Solowiej and Collins 2009).
We, thus, expect that when the Solicitor General is invited to submit a brief at the
certiorari stage, the likelihood of an interest group subsequently also filing a brief will increase. In
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order to measure causality, coding on this variable required that the Court’s invitation for the
Solicitor General predated the brief filed by the group. Following from Caldeira and Wright
(1988), we would expect that the direction of the Solicitor General’s brief, either in support of or
in opposition to review, will have little effect on a group’s decision to file their own brief. In other
words, the mere fact that the Solicitor General has submitted a brief at the certiorari stage will be
sufficient to prompt a group to file as well, irrespective of the content of the executive’s brief. That
said, following some more recent work, we examine the effect of the direction of the brief filed by
the federal government’s top attorney as well.
H1: When the Solicitor General is invited to file an amicus brief concerning certiorari, an
interest group will be more likely to subsequently file as well.
The salience of issues to the public and policy elites may also be important when
organized interests make decisions whether or not to file. This, in fact, is crucial for the democracy
link at the heart of this paper. If a case attracts media attention, which means it is salient to the
public (elite and masses) and as a result interest groups are more likely to file amicus briefs, then
the groups indeed relay popular will in a way that influences the Court. The reason why salience is
important is twofold. First, there is empirical evidence to suggest that Supreme Court justices
themselves react differently to salient issues (Slotnick 1978, 1979; Spaeth 1984; Segal and Spaeth
1993; Epstein and Segal 2000). Consequently, we argue that organized interests will file amicus
briefs at the cert stage in highly publicized cases because they are more likely to attract judicial
attention.
Second, we argue that filing amicus briefs in salient cases may activate latent publics and
therefore is critical to group survival. Salient cases stand out on the Court’s docket thereby
receiving a disproportionate amount of attention not only from judges but from the general public
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as well. The publicity ascribed to such cases via newspapers and increased media coverage
provides organized interests with a unique opportunity to showcase their ideas and policy
influence directly to potential supporters. Groups, thus, may rely on their amicus participation to
exercise favorable influence over important policy changes and to attract and maintain
membership support (Solberg and Waltenburg 2006).
Furthermore, exploiting issue salience by filing amicus briefs in highly publicized cases
enables organized interests to carve out specialized “policy niches” that facilitate the recognition
of differences between similar groups. Consistent with the population ecology model of interest
group communities (Browne 1990; Gray and Lowery 1996), this particular argument suggests that
organized interests use amicus briefs in highly publicized cases to distinguish themselves from one
another and to compete for members. Put simply, the group expects to attract membership support
by demonstrating its unique policy influence through amicus participation in highly publicized
cases. Likewise, the content of the brief serves as a type of ideological statement that potential
supporters may seek to substantiate by officially joining the organization.
To measure issue salience, we examine the coverage the media affords to a specific case—
and the individuals involved in litigation—both locally and nationally (Epstein and Segal 2000;
Hansford 2004). In keeping with the notion that amicus briefs facilitate the expression of popular
will, it is useful to include a salience variable that captures both local and national coverage.
Traditionally, political scientists have examined national papers like the Washington Post, Wall
Street Journal, and especially the New York Times as a proxy for media more generally (Epstein
and Segal 2000; Hansford 2004). Most citizens, however, continue to rely on local news sources to
stay informed (Althaus 2002; Pew 2008). Furthermore, many cases that are not covered by papers
like the New York Times are in fact showcased in local papers. Consequently, we predict the
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likelihood of a group filing at cert will increase as more citizens (e.g. potential group supporters)
learn about the case via national and local newspapers. It is reasonable to argue that the general
public becomes informed about legal decisions through their exposure not only to national but also
to local news sources. Although local news sources may or may not report on legal cases
originating in a group’s home base of operations, the likelihood of the group taking an interest in
the case increases as the number of citizens (i.e. potential group supporters), who are aware of its
existence also increases. In sum, coverage of a decision in local news sources serves as an
indicator that a wide range of people beyond those who subscribe to the New York Times are
aware of a lower court decision that can in turn be exploited by groups in pursuit of organizational
goals. Our measure of coverage ranges from the time preceding the lower court’s decision leading
up to the Supreme Court’s cert decision. This particular measure therefore enables us to capture
issue salience at the exact time organized interests were deciding to file briefs. We expect that as
media coverage (and thus salience) increase, so would the likelihood of the group filing a brief.
We employ several measurement strategies to examine the effect of media coverage (Hansford
2004; Epstein and Segal 2000).
H2: The more salient the case in terms of its media coverage, the more likely a group is to
file an amicus brief.
Apart from the effects of external players, groups may be motivated to file briefs due to
internal concerns. Groups filing amicus briefs may do so, for instance, in pursuit of organizational
maintenance. This includes any activity required to build an organization, attract and maintain its
membership, and forge alliances with other organized interests (Brown 1977; Walker 1983;
Goldstein 1999). In this sense, amicus participation may be one way membership-based groups
take credit for producing policy changes that solidify and attract membership support. Specifically,
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amicus participation at the level of the Supreme Court provides organized interests with a unique
opportunity to publicly suggest solutions to legal questions that are advantageous to existing as
well as potential supporters and to exercise influence over doctrinal output (Pediana 2009; Daum
2009).
To demonstrate the group’s influence in pursuing its policy objectives, the organization
must make its brief accessible to members either by publishing the brief in the interest group’s
newsletter or by making it available to constituents through the organization’s website. We view
this activity as a type of credit-claiming among membership groups for the purpose of
demonstrating their influence to potential supporters. The organized interests in the sample include
membership and non-membership groups with offices in Washington DC, therefore we control for
whether the group was a membership group or not.ii
H3: Membership groups will file amicus briefs as a way of taking credit for influencing
policies that are important to their constituents as well as potential supporters.
Characteristics of the parties and the case should influence interest groups. Parties losing
to the US at the lower level may decide rationally or irrationally to appeal to the Supreme Court,
cases (Sakolar 1992) which would be readily identified by justices and their clerks as frivolous.
Hence, when the US is a respondent, groups should be less likely to file a brief.
H4: When the US is a respondent, groups should be less likely to file a brief.
As for the characteristics of the case, those can be divided into two broad categories, the first
having to do with how the case was treated at lower levels of the judicial hierarchy. Specifically,
there is considerable support for the notion that conflict between the decisions rendered by lower
courts (Sturley 1989, Perry 1991) as well as the presence of a dissenting opinion at the lower level
(Caldeira and Wright 1990) tend to increase the chances of review. As described later, coding of
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conflict (real or alleged) proved unworkable for the 2004 term. We do expect, however, that a
dissenting opinion on the lower court would increase the likelihood of a brief.
H5: A dissenting opinion on the lower court would increase the likelihood that a group
would file an amicus brief.
The second category of case characteristics likely to influence the decision to file a brief is
the type of case before the Court; certain issue areas will attract the attention of the justices, and
therefore be more likely to be granted review. Although cultivating membership support is not an
attendant goal of institutional interests (e.g. corporations, see Hansford (2004) and Collins (2007)),
groups may seek to exercise influence in different policy sectors as a way of maintaining
organizational prowess. Specifically, groups can promote policy change favorable to their interests
by advancing legal arguments in amicus briefs that are consistent with new policy ideas. The
ultimate goal of organized interests in this sense is to influence the construction of a favorable
system of legal precedent in a certain legal issue area. Alternatively, groups content with the status
quo may try to persuade judges to reject the ideas of policy competitors by filing their own briefs.
In both instances amicus briefs serve as a discursive vehicle through which organized interests
engage in struggles over doctrinal output and attempt to outline policy solutions in specific issue
areas that are attractive to judges. In essence we assert that groups will submit amicus curiae briefs
when the information context surrounding the case—including the substantive issue area—has
been proven to interest justices and is of interest to the group.
The suggestion that issue characteristics will make a given case more attractive to justices
at the cert stage, and thereby be more likely to be granted review, is also closely associated with
Cue Theory (Tannenhaus 1963). According to this theory, due to the large number of cases that
come before the Court for review, the justices employ a series of “cues” that would assist in
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making certain cases stand out. Among these are the involvement of the federal government as a
petitioner, disagreement between courts at lower levels, and the presence of a civil liberties or
economic issue. More specifically, cases presenting First Amendment questions have been
demonstrated to elicit the attention of the Supreme Court (Armstrong and Johnson 1982), as have
those raising an economic issue (Songer 1979). We hypothesize that interest groups are aware of
the Court’s increased propensity to hear these types of cases. Groups are therefore more likely to
be willing to commit resources to the preparation of an amicus brief in such cases.
H6: Interest groups would be more likely to file amicus briefs in cases in issue areas in
which the Court has in the past demonstrated interest.
In addition, we test the predictors of how much group attention cases attract; i.e. the
number of briefs filed. Here the unit of analysis is the case, rather than the group-case dyad. Based
on the theory reviewed so far, we expect the predictors to be similar, with the exception of group
characteristics (due to the shift in the unit of analysis).
H7: A case is likely to attract more amici when the Solicitor General, is invited to file an
amicus brief at cert.
H8: Increased media coverage is likely to attract an increased number of amicus briefs.
H9: When disagreement appeared at the lower level, the case is likely to attract an
increased number of briefs.
H10: Cases in issue areas in which the Court has in the past demonstrated interest are
more likely to attract an increased number of briefs.
Data and Methods
To test our theory, two original datasets were compiled. To test H1 to H6, an interest group-case
dyad dataset is used (Hansford 2004), and to test H7 to H10, we use a dataset with the case as the
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unit of analysis (Martinek 2006). Data collected include a random sample of 767 petitions for
review from the Supreme Court’s October Term 2004 (approximately 10% of the 7542 petitions
filed that term (Harvard Law Review Association 2005)) and a random sample of 728 organized
interests from Washington Representatives. In 3.2% of the cases in our sample an amicus brief was
filediii. The random samples of petitions and organized interests were drawn using a random
number generator. Data were available for 554,663 of the possible 558,376 dyads. Given the
nature of some of our variables, such as groups’ websites and newsletters, the choice of a
relatively recent term of the Court (but one which preceded the recent personnel changes)
considerably facilitated data collection. In addition, as a result of the stability in membership in the
9 years preceding, in the 2004 term interest groups were familiar with the decision making terrain
on the Court and were thus in a good position to act rationally.
In order to test factors that influence the filing of briefs at cert, we operationalized two
dependent variables. First is a dichotomous variable, File, which equals 1 when a group filed a
brief and 0 otherwise. Second, Number is a count variable, measuring the number of amicus briefs
filed with a petition for certiorariiv. The independent variables are operationalized as follows:
when the Court invites the Solicitor General to file a brief, the variable is coded 1, 0 otherwise. In
our data, all briefs filed by the government’s top attorney were in response to an invitation by the
justices and in none of the cases did the Solicitor General advise the grant of a writ of certiorari.
Since we are interested in causal relations, the coding for Solicitor General was 1 only if the brief
by the Solicitor General preceded the group’s brief. Dissent on the Lower Court was coded 1 if
there was a dissent, 0 otherwise. Due to data availability, we could not code for inter-circuit
conflict, though we do not contest the importance of this variable to the justices’ decision or to
interest groups. However, there are several empirical reasons that lead us to omit it. Firstly, the
15
main source for actual and alleged conflicts is the Epstein, Segal and Spaeth (2007) archive from
the Blackmun Files of cert memos, which does not cover the October Term 2004. Furthermore,
even if we used LexisNexis, we would not get the actual petitions for a writ of certiorari for cases
that were denied review. Consequently, either coding of the variable would be unworkable or the
size of the sample would considerably decrease and much of the variance in our dependent
variables and predictors would be eliminated.
The salience of the case was determined based on the presence or absence of media
coverage. Since media coverage is a crucially important variable for the democracy question this
paper is intended to address and to ensure the robustness of the findings, we coded this variable
three different ways. Salience1 was coded 0 for no media coverage, 1 for local coverage, 2 for
national coverage and 3 for local and national coverage of the decision of the Supreme Court on
cert. Salience2 is coded 1 when the lower court’s decision was mentioned on the front page of the
New York Times and 0 otherwise (Epstein and Segal 2000). Finally, the coding for Salience3 was
0 if the lower court decision was not covered in the New York Times, 1 if it was referenced by an
article but was not the lead story, 2 if it was the focus of an article (not on the front page), and 3 if
it was the primary focus of a front-page article (Hansford 2004). Salience variables were coded
based on a search of LexisNexis of the case itself, both as reported at the lower court level and as
petitioned to the Supreme Court. In addition, the names of the parties to the case and any other
pertinent information likely to yield results were searched. Local news sources as well as more
widely read periodicals were searched. The type of media outlet was determined through reference
to the source information provided in LexisNexis. Interest Group Newsletter was coded 1 if the
lower court’s decision or the petition for certiorari were mentioned in the interest group’s
newsletter or on its website and 0 otherwise. Whether the group was Membership-based or not was
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determined based on sources such as the group’s own website. Finally, based on the coding in the
Spaeth Supreme Court Database of legal issue areas, variables reflecting the type of case before
the Court were coded to reflect the presence before the Court of a constitutional question
surrounding the First Amendment or an Economic Question.
Models examining the question which variables cause groups to file briefs were estimated
using the dyad dataset. The case-based dataset, then, was used to analyze questions pertaining to
why cases attract group attention. When the dependent variable was File, which is a dichotomous
variable, a logistic regression was estimated.v To test for robustness, several model specifications
and a Rare Events Logistic Regression (King and Zeng 2001) were also estimated (results not
presented here). When Number was the outcome variable, Negative Binomial and Poisson models
were estimated. When a Negative Binomial regression model was estimated, the results were
substantively indistinguishable, with the values of the over dispersion coefficient, alpha, indicating
that the model would be better estimated using a Poisson regression (Wooldridge 2002).
Accordingly, the results from the Poisson regression are presented. The results of both models
were substantively identical. As with the logistic regression models estimated, to test for
robustness, several model specifications were tested for the Poisson.
The Basic Contours of Amicus Activity
In our sample, the Supreme Court entertained approximately 80 “friends” filing a total of
24 briefs. The total number of amicus curiae participants encompasses 37 individuals acting in
their capacities as senators, judges and military officials, 22 citizen advocacy or public interest
groups, and 9 business, trade, and professional associations. These participants are listed in Table
1. Several cases drew multiple amicus participants. Most notably, a total of 7 amicus briefs
representing well over 15 organized interests were filed in Albuquerque v. Homans, a case
17
addressing mandatory spending limits for mayor and city council in the City of Albuquerque.
Similarly, Hamdan v. Rumsfeld, a case challenging the federal government’s right to try
Guantanamo Bay detainees before a military commission, attracted 12 distinct participants filing a
total of 4 briefs representing the interests of military officials, business associations like Google
and Cisco Systems, and advocacy groups like Human Rights First and Physicians for Human
Rights. The total number of amicus briefs compared to the number of amicus curiae participants
indicates that it was common for organized interests to pool resources and work together to file
amicus briefs. Overall, Table 1 signifies that a wide variety of organized interests take advantage
of the opportunity to participate as amici of the United States Supreme Court at the cert stage.
(insert Table 1 here)
Results
What influences the decision to file a brief at the cert stage? The models presented in Table 2 lend
strong support to our key contention; interest groups are rational. They systematically consider
certain variables when deciding whether to file an amicus brief at the cert stage. Furthermore,
some of the most important predictors of such group activity are associated with popular
preference. Overall, Models I-III (in Table 2) predict almost all cases correctly. In support of H1,
when the Court invites a brief from the Solicitor General a brief by an organized interest is more
likely. In fact, in our sample, the Solicitor General variable predicts the outcome variable
perfectly. When the government’s top attorney was invited to submit a brief, this was a strong
predictor that at least one organized interest would follow suit. Salience, as measured by media
coverage, also increases the likelihood of a brief filed. The highly significant finding for this
variable lends strong support to H2. As for H3, while the Group’s Newsletter variable was
dropped from the analysis because of perfect correlation with the predicted variable, this finding is
18
important. In nearly all cases where an appeal was made to the group’s constituency via its
newsletter or website, a brief was filed. This correlation resulted in the fact that the statistical
software dropped the variable from the multivariate analysis. There seems to be a strong
relationship between attempts to appeal to the group’s constituency and the decision to file. In line
with H4, whenever the US was a respondent, no brief was filed at cert. In our sample, groups
never file briefs in cases where the US is taken to the high court by a losing party at the lower
level. As for H5, counter to our expectations, disagreement on the lower court had no systematic
effect. Likewise, the interaction between Membership and Media Coverage is insignificant. As for
the types of issue areas raised by the case, the effect of First Amendment issue is highly significant
and in the anticipated direction. The effect of Economic Issue is in the anticipated direction, but
fails to reach standard levels of statistical significance. The support for H6 is thus only partial. The
specification of models II and III (Table 2) excludes the variables dropped in Model I.vi Most
importantly, the juxtaposition of those two models allows us to examine the robustness of the
salience variable. Salience1 and Salience3 (in Models II and III respectively) yield substantively
similar results,vii and in both cases H6 wins full support. The coefficients on the First Amendment
and the Economic Issue variables are in the anticipated direction and highly significant.
(insert Table 2 here)
To more fully appreciate the effects of the models in Table 2, Figure 1 presents predicted
probabilities for Model I calculated using CLARIFY.viii On the Y-axis are predicted probabilities
of filing of a brief. Other than the manipulated variables, all other independent variables are set at
their mean (for continuous variables) or mode (in the case of dichotomous predictors). Overall,
when a case presents a First Amendment issue (the four columns on the right) the likelihood that a
group would file a brief increases. Likewise, the effect of case salience is clear. The likelihood of a
19
brief is higher when there is media coverage, which is particularly true when the extent of
coverage increases. Most striking is the combined effect of the different predictors. While in
virtually every case covered by the national and local media which raises a First Amendment issue
we expect to find a brief filed by a group, the predicted probability drops to .35 when there is no
coverage for a case concerning the protection of rights under the First Amendment. Furthermore,
predicted probability of a brief filed by a group plummets even further to .005, when the case gets
no media coverage and does not raise a First Amendment question.
(insert Figure 1 here)
Why do some cases attract group attention? In the second type of models we studied, the
unit of analysis changed from group-case dyad to case. The analyses in Table 3 offer some insight
into what explains the number of briefs a case attracts. The results presented in Table 3 support all
but one of hypotheses H7 to H10. A case in which the Court invited the federal government to file
a brief on cert is likely to attract a greater number of such briefs overall. Likewise, media coverage
increases the total number of briefs filed by amici at cert. The coefficient on Lower Court
Disagreement is in the anticipated direction, yet, this coefficient fails to reach standard levels of
statistical significance. Finally, both economic and First Amendment cases are likely to attract a
greater number of briefs total. Coefficients on these variables are highly significant.
(insert Table 3 here)
Discussion and Conclusions
Unlike much of the literature in political science on this topic, in this study we did not examine the
effects of amicus briefs on judicial decision making. Rather, our goal in this paper was to analyze
why groups file amicus briefs at cert. The importance of amicus briefs cannot be overstated; they
are a critical means to communicate democratic input into the judiciary. This is true when the
20
Supreme Court selects cases for plenary review (Caldeira and Wright 1988; 1990) as much as in
any of the other stages of the Court’s decision making (Collins 2008a; 2004). In fact, our work fits
in with a recent trend of scholarship focusing on organized interests and explaining their behavior
(Solowiej and Collins 2009; Solberg amd Waltenburg 2006; Hansford 2004). We benefit from this
work and improve the theoretical coherence of the scholarly understanding of groups. At the heart
of this project were two major questions – the first concerned the predictors of whether a group
filed a brief at cert; and the second examined the predictors of the number of briefs a petition for
certiorari attracts.
The results of this paper indicate that three major types of variables systematically
influence the groups’ decision making: the behavior of external players, the groups’ appeal to their
constituencies and the characteristics of the case and parties. When the Court invites the Solicitor
General to file an amicus brief, there are bound to be amici interested. Consequently, the
likelihood that a brief is filed increases considerably. Along the same lines, this variable increases
the number of briefs we would expect to find in the case. When a group mentions the case in its
communication with its constituency, the likelihood that a brief is filed increases. We find a
similar effect for coverage by the media. When newspapers with national prominence cover the
case, the likelihood of a brief considerably increases. Likewise, we expect to find more briefs in
salient cases. Furthermore, First Amendment cases or cases raising an economic question have a
significant effect. Finally, while we find support for the discrete effects of each of the predictors,
most striking was the combined effect of the independent variables. Compared to a case with none
of those, in a case where a First Amendment issue is raised and national and local media cover the
decision, the likelihood of a brief increases more than a hundredfold.
21
In sum, our key contention found considerable support in the data. Judging by a random
sample of petitions for review and organized interests in the October Term 2004, groups behave
systematically in a rational way when filing an amicus brief at cert. In other words, they invest the
considerable resources involved in filing a brief only if they expect their investment to pay off in
the sense that the Court would take the case and they would accomplish policy goals and bolster
their appeal to their constituencies (Solberg and Waltenburg 2006).
Groups strive to maximize their utility. This key insight into lobbying at the Supreme
Court level generally and during agenda setting in particular may also add to our understanding of
the function of briefs. Hansford (2004) posits that groups, motivated by policy goals, capitalize on
an information-poor environment in certain cases and use their briefs to influence the policy in the
majority opinion (p. 219). In Collins (2008a), briefs overload justices’ cognitive processes, which
results, for instance, in greater variance in decision making (Ch. 5). More specifically for case
selection, Caldeira and Wright (1988) underscore the informational value of briefs. It is the total
number rather than contents of briefs that influence judicial decision making. The findings of this
study indicate that groups select cases to file in a systematic, rational fashion. Furthermore, certain
cases lend themselves to more amici activity than others. One of the dependent variables used
here, the total number of amicus curiae briefs filed at cert, is known to directly influence the
Supreme Court’s decision on certiorari (Caldeira and Wright 1988; 1990). The systematic
explanation we provide here should inform future studies. When studying the effects of this
democratic conduit on judicial decision making, the rational way in which organized interests
decide to file briefs should be taken into account.
Beguilingly, some of the variables that drive groups to file are closely linked to general
popular likings as well as to the preferences of the constituencies of the specific groups. This
22
study, therefore, also indicates the existence of a democratic link in the Court’s gate keeping
function. Though indirectly, when the Court sets the national agenda it is influenced among other
things by popular will. The national media, which reflect concerns of the public at large, influence
groups, and thus indirectly have an impact on a key decision of the Court. The same applies to
local media, which are more focused on the concerns of citizens implicated by the case at hand.
When local media outlets cover the case, they indirectly affect the democratic process at the
national level. As the media variable was crucially important for this paper, we measured it in a
variety of ways. The findings in all models were robust for different measurement strategies and in
all cases yielded the same substantive result – organized interests systematically consider the
salience of the case when filing. What is more, the concerns and interests of the particular
constituencies of the groups are also brought to bear on the democratic process writ large. In sum,
when groups file briefs to appeal to their constituencies they do so partly for organizational
maintenance and partly with an eye to the Court’s agenda and hence indirectly to the national
one.ix
The institutional design of American democracy insulates Supreme Court justices from the
ebb and flow of politics. The vagaries of political survival inflicted on elected officials do not
apply to justices, whose appointments are for life and who have no superior court to overrule their
decisions (Segal and Spaeth 2002). Briefs amicus curiae, this study indicates, are nonetheless
means by which popular preferences may be relayed to those populating the bench of the highest
court of the land. Once adapted in accordance with variance in structure and setting, this important
conclusion concerning the democratic function of groups can be used in comparative work as well.
In other systems of government groups are of different types, interact differently with the
government and have varying levels of political clout. The comparative examination of how
23
popular will is relayed to decision makers in other systems may be informed by insights from this
study.
Our research is among the first to present evidence that supports the democratic function
of amicus briefs, particularly at the critical stage of case selection on the Supreme Court. It is
variables closely associated with popular will, the findings of this study indicate, that
systematically cause interest groups to file those briefs and influence which 80 of the
approximately 9000 petitions for review will be fully reviewed by the high court each term.
Hence, by filing those briefs, rather than willing for the people, groups in fact reflect the will of
the people. When national and local media coverage connote popular concern about a case
pending and when the groups’ constituencies are interested in the case, briefs amicus curiae will
more likely be filed. Consequently, the Court is more likely to grant the case full review. Though
indirectly, popular will, therefore, affects the judicial process.
24
References
Althaus, Scott. 2002. “American News Consumption during Times of National Crisis.” PS: Political
Science & Politics 35(3): 517-21.
Ando, Amy Whritenour. 2003. “Do Interest Groups Compete? An Application to Endangered Species.”
Public Choice 114(1-2): 137-159.
Armstrong, Virginia C, and Charles A. Johnson. 1982. “Certiorari Decisions by the Warren and Burger
Courts: Is Cue Theory Time Bound?” Polity 15(1): 141-150.
Austen-Smith, David, and John R. Wright. 1992. “Competitive Lobbying for a Legislator’s Vote.” Social
Choice and Welfare 9: 229-57.
Austen-Smith, David, and John R. Wright. 1994. “Counteractive Lobbying.” American Journal of Political
Science 38: 25-44.
Austen-Smith, David, and John R. Wright. 1996. “Theory and Evidence for Counteractive Lobbying.”
American Jouranl of Political Science 40: 543-564.
Bailey, Michael A., Brian Kamoie, and Forrest Maltzman. 2005. “Signals from the Tenth Justice: The
Political Role of the Solicitor General in Supreme Court Decision Making.” American Journal
of Political Science 49(1): 72-85.
Barnum, David. 1985. “The Supreme Court and Public Opinion: Judicial Decision Making in the Post-New
Deal Period.” Journal of Politics 47: 652-666.
Baumgartner, Frank. R, and Beth L. Leech. 1996. “The Multiple Ambiguities of ‘Counteractive Lobbying’”
American Journal of Political Science 40: 521-542.
Bentley, Arthur F. 1908. The Process of Government: A Study of Social Pressures. Chicago: University of
Chicago Press.
Boucher, Robert and Jeffrey Segal. 1995. “Supreme Court Justices as Strategic Decision Makers:
Aggressive Grants and Defensive Denials on the Vinson Court.” The Journal of Politics 57(3):
824-837.
Brenner, Saul. 1979. “The New Certiorari Game.” The Journal of Politics 41(2): 649-655.
Browne, William. 1977. “Organizational Maintenance: The Internal Operation of Interest Groups.” Public
Administration Review 37(1): 48-57.
Browne, William. 1990. “Organized Interests and Their Issue Niches: A Search for Pluralism in a Policy
Domain.” The Journal of Politics 52(2): 477-509.
Caldeira, Gregory A., and John R. Wright. 1988. “Organized Interests and Agenda Setting in the U.S.
Supreme Court.” American Political Science Review 82: 1109-27.
Caldeira, Gregory A., and John R. Wright. 1990. “Amici Curiae Before the Supreme Court: Who
Participates, When, and How Much?” Journal of Politics 52: 782-806.
25
Caplan, Lincoln. 1987. The Tenth Justice: The Solicitor General and the Rule of Law. New York: Vintage
Books.
Collins, Paul. M. 2004. “Friends of the Court: Examining the Influence of Amicus Curiae Participation in
the U.S. Supreme Court Litigation.” Law & Society Review 38: 807-32.
Collins, Paul. M. 2007. “Lobbyists Before the U.S. Supreme Court: Investigating the Influence of Amicus
Curiae Briefs.” Political Research Quarterly 60: 55-70.
Collins, Paul. M., and Lisa A. Solowiej. 2007. “Interest Group Participation, Competition, and Conflict in
the U.S. Supreme Court.” Law & Social Inquiry 32: 955-984.
Collins, Paul. 2008a. Friends of the Supreme Court: Interest Groups and Judicial Decision Making. New
York: Oxford University Press.
Collins, Paul. 2008b. “Amici Curiae and Dissensus on the U.S. Supreme Court.” Journal of Empirical Legal
Studies 5(1): 143-70.
Daum, Courtney. 2009. “Deciding Under the Influence? The ‘One-Hit Wonders’ and organized-Interest
Participation in U.S. Supreme Court Gay Rights Litigation” in Queer Mobilizations. Ed.
Barclay, Scott et al. New York: New York University Press.
Epstein, Lee, and Jeffrey Segal. 2000. “Measuring Issue Salience.” American Journal of Political Science
44(1): 66-83.
Epstein, Lee, and Jack Knight. 1998. The Choices Justices Make. Washington, D.C.: CQ Press.
Epstein, Lee. 1985. Conservatives in Court. Knoxville: University of Tennessee Press.
Epstein, Lee, Jeffrey A. Segal, Howard Spaeth, and Thomas Walker. 2006. The Supreme Court
Compendium, 4th Edition. Washington: Congressional Quarterly Press.
Goldstein, Kenneth. 1999. Interest Groups, Lobbying, and Participation in America. Cambridge:
Cambridge University Press.
Gray, Virginia and David Lowery. 1996. The Population Ecology of Interest Representation: Lobbying
Communities in the United States. Ann Arbor, Michigan: University of Michigan Press.
Hall, Kermit L. 1999. The Oxford Guide to United States Supreme Court Decisions. New York: Oxford
University Press.
Hansford, Thomas G. 2004. “Information Provision, Organizational Constraints, and the Decision to Submit
an Amicus Curiae Brief in a U.S. Supreme Court Case.” Political Research Quarterly 57(2):
219-230.
Harvard Law Review Association. 2005. "The Supreme Court, 2004 Term: The Statistics." Harvard Law
Review. 119, 415.
Hellman, Arthur D. 1985. “Case Selection in the Burger Court: A Preliminary Analysis.” Notre Dame Law
Review 60: 947–1050.
26
Hellman, Arthur D. 1996. “The Shrunken Docket of the Rehnquist Court.” Supreme Court Review 1996,
403–438.
Hojnacki, Marie, and David C. Kimball. 1998. “Organized Interests and the Decision of Whom to Lobby in
Congress.” American Political Science Review 92: 775-90.
Holyoke, Thomas. T. 2003. “Choosing Battlegrounds: Interest Group Lobbying Across Multiple Venues.”
Political Research Quarterly 56: 325-336.
Johnson, Timothy R. 2003. “The Supreme Court, the Solicitor General, and the Separation of Powers.”
American Politics Research 31(4): 426-451.
Johnson, Timothy R., and Andrew D. Martin. 1998. “The Public’s Conditional Response to Supreme Court
Decisions.” American Political Science Review 92(2): 299-309.
King, Gary and Zeng Langche. 2001. “Logistic Regression in Rare Events Data.” Political Analysis 9(2):
137-63.
King, Gary, Michael Tomz, and Jason Wittenberg. 2000. “Making the Most of Statistical Analyses:
Improving Interpretation and Presentation.” American Journal of Political Science 44(2): 34155.
Lawless, R. M. and D. L. Murray. 1997. “An Empirical Analysis of Bankruptcy Certiorari.” Missouri Law
Review 62: 101–134.
Long, J. Scott. 1997. Regression Models for Categorical and Limited Dependent Variables. Thousand Oaks,
CA: Sage Publications.
Long, T. J. 1984. “Deciding Whether Conflicts with Supreme Court Precedent Warrant Certiorari.” New
York University Law Review 59: 1104–1119.
Lowery, David, Virginia Gray, Jennifer Wolak, Erik Godwin, and Whitt Kilburn. 2005. “Reconsidering the
Counter-Mobilization Hypothesis: Health Policy Lobbying in the American States.” Political
Behavior 27: 99-132.
Lynch, Kelly J. 2004. “Best Friends? Supreme Court Law Clerks on Effective Amicus Briefs.” Journal of
Law and Politics. 20: 33-73.
Martinek, Wendy. L. 2006. “Amici Curiae in the U.S. Courts of Appeals.” American Politics Research 34:
803-24.
McGuire, Kevin T. 1998. “Explaining Executive Success in the U.S. Supreme Court.” Political Research
Quarterly 51: 505-526.
McGuire, Kevin T., and Gregory A. Caldeira. 1993. “Lawyers, Organized Interests, and the Law of
Obscenity: Agenda Setting in the Supreme Court.” American Political Science Review 87: 71726.
27
Mishler, William, and Reginald Sheehan. 1993. "The Supreme Court as a Countermajoritarian Institution?
The Impact of Public Opinion on Supreme Court Decisions." American Political Science Review
87(1): 87-101.
Nicholson, Chris, and Paul M. Collins. 2008. “The Solicitor General’s Amicus Curiae Strategies in the
Supreme Court.” American Politics Research 36(3): 382-415.
O’Connor, Karen, and Lee Epstein. 1983. “The Rise of Conservative Interest Group Litigation.” Journal of
Politics 45: 479-89.
O’Connor, Karen. 1983. “The Amicus Curiae Role of the U.S. Solicitor General in Supreme Court
Litigation.” Judicature 66(December-January): 256-64.
Olson, Susan E. 1990. “Interest Group Litigation in Federal District Court: Beyond the Political
Disadvantage Theory.” Journal of Politics 52: 854-882.
Pedriana. Nicholas. 2009. “Intimate Equality: The Lesbian, Gay, Bisexual, and Transgender Movement’s
Legal Framing of Sodomy Laws in the Lawrence v. Texas Case” in Queer Mobilizations. Ed.
Barclay, Scott et al. New York: New York University Press.
Perry, H. W. 1991. Deciding to decide: agenda setting in the United States Supreme Court. Cambridge:
Harvard University Press.
Pew Research Center for the People & Press. 2008. “Key News Audiences Now Blend Online and
Traditional Sources.” Washington DC: The Pew Research Center.
Provine, Doris M. 1963. Case Selection in the United States Supreme Court. Chicago: University of
Chicago Press.
Salokar, Rebecca M. 1992. The Solicitor General: The Politics or Law. Philadelphia: Temple University
Press.
Segal, Jeffrey and Harold J. Spaeth. 1993. The Supreme Court and the Attitudinal Model. Cambridge:
Cambridge University Press.
Segal, Jeffrey, and Harold J. Spaeth. 2002. The Supreme Court and the attitudinal model revisited.
Cambridge, UK; New York: Cambridge University Press.
Shapiro, Stephen M. 1984. “Amicus Briefs in the Supreme Court.” Litigation 10(3): 21-22.
Slotnick, Elliot. 1978. “The Chief Justice and Self Assignment of Majority Opinions.” Western Political
Quarterly 12: 318-332.
Slotnick, Elliot. 1979. “Who Speaks for the Court? Majority Opinion Assignment from Taft to Burger.”
American Journal of Political Science 23: 60-75.
Smith, Kevin H. 1999. “Justice for All? The Supreme Court’s Denial of Pro Se Petitions for Certiorari.”
Albany Law Review 63: 381–425.
28
Smith, Kevin H. 2001. “Certiorari and the Supreme Court Agenda: An Empirical Analysis.” Oklahoma Law
Review 54: 727-773.
Solberg, Rorie Spill, and Eric N. Waltenburg. 2006. “Why Do Interest Groups Engage the Judiciary? Policy
Wishes and Structural Needs.” Social Science Quarterly 87(3): 558-572
Solowiej, Lisa A. and Collins, Paul M. 2009. “Counteractive Lobbying in the U.S. Supreme Court.”
American Politics Research 37(4): 670-99.
Songer, Donald R. 1979. “Concern for Policy Outputs as a Cue for Supreme Court Decisions on Certiorari.”
The Journal of Politics 41(4): 1185-1194.
Spaeth, Harold. 1984. “Distributive Justice: Majority Opinion Assignments in the Burger Court.”
Judicature 67: 299-304.
Spriggs, James F., and Paul J. Wahlbeck. 1997. “Amicus Curiae and the Role of Information at the Supreme
Court.” Political Science Quarterly 50(June): 365-86.
Staudt, Nancy C. 2005. “Symposium: Agenda Setting in Supreme Court Tax Cases: Lessons from the
Blackmun Papers.” Buffalo Law Review 52: 889-922.
Sturley, M. F. 1989. “Observations on the Supreme Court’s Certiorari Jurisdiction in Inter-circuit Conflict
Cases.” Texas Law Review 67: 1268–1275.
Tannenhaus, Joseph, Marvin Schick, Matthew Muraskin, and Daniel Rosen. 1963. “The Supreme Court's
Certiorari Jurisdiction: Cue Theory.” In Glendon Schubert, ed., Judicial Decision Making.
Glencoe, IL: Free Press.
Tauber, Steven C. 1998. “On Behalf of the Condemned? The Impact of the NAACP Legal Defense Fund on
Capital Punishment Decision Making in the U.S. Court of Appeals.” Political Research
Quarterly 51 (1): 191-219.
Tiberi, Todd J. 1993. “Supreme Court Denials of Certiorari in Conflict Cases: Percolation or
Procrastination?” University of Pittsburgh Law Review 54: 861–892.
Ulmer, S. Sidney. 1984. “The Supreme Court's Certiorari Decisions: Conflict as a Predictive Variable.”
American Political Science Review 78(4): 901-911.
Ulmer, S. Sidney, William Hintze, and Louise Kirklosky. 1972. “The Decision to Grant or Deny Certiorari:
Further Consideration of Cue Theory.” Law and Society Review 6(4): 637-644.
Vuong, Quang, H. 1989. “Likelihood Ratio Tests for Model Selection and Non-Nested Hypotheses.”
Econometrica 57(2): 307-33.
Walker, Jack. 1983. “The Origins and Maintenance of Interest Groups in America.” The American Political
Science Review 77(2): 390-406.
Wooldridge, Jeffrey, M. 2002. Econometric Analysis of Cross Section and Panel Data. Cambridge, MA:
MIT Press
29
Tables
TABLE 1
Organizations Appearing as Amicus Curiae
Business, trade, or professional organizations
•
•
•
•
•
•
•
•
Massachusetts Committee for Public Counsel Services (Castillo v. Corsini)
National Association of Manufacturers (State Farm v. Campbell)
National Association of Mutual Insurance Companies (State Farm v. Campbell)
Property Casualty Insurers Association of America (State Farm v. Campbell)
The National Bar Association (Albuquerque v. Homans)
Cisco Systems Inc. (American Axle & Manufacturing, Inc. v. Dana Corp)
Chamber of Commerce of the United States of America (State Farm v. Campbell; Bank of China v. NBM L.L.C )
Google, Inc. (American Axle & Manufacturing, Inc. v. Dana Corp)
Citizen advocacy or public interest groups
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
Human Rights USA (Al-Marri v. Rumsfeld)
FreedomWorks (State Farm v. Campbell)
Brennan Center for Justice (Stumbo v. Anderson)
Common Cause of Kentucky (Stumbo v. Anderson)
National Voting Rights Institute (Stumbo v. Anderson)
TheRestofUs.Org (Albuquerque v. Homans)
New Mexico Public Interest Research Group (Albuquerque v. Homans)
National Association of State PIRGs (Albuquerque v. Homans)
Common Cause (Albuquerque v. Homans)
Public Campaign (Albuquerque v. Homans)
Demos (Albuquerque v. Homans)
Citizens for Responsibility and Ethics in Washington (Albuquerque v. Homans)
ReclaimDemocracy.Org (Albuquerque v. Homans)
NAACP (Albuquerque v. Homans)
The Fannie Lou Hamer Project (Albuquerque v. Homans)
The National Asian Pacific American Legal Consortium (Albuquerque v. Homans)
The Equal Justice Society (Albuquerque v. Homans)
The Latino Issues Forum (Albuquerque v. Homans)
The Greenlining Institute (Albuquerque v. Homans)
Human Rights First (Hamdan v. Rumsfeld)
Physicians for Human Rights (Hamdan v. Rumsfeld)
Washington Legal Foundation (Bank of China v. NBM L.L. C)
Government
•
•
•
Solicitor General (Al-Marri v. Rumsfeld; IBP Inc. v. Alvarez; Bank of China, New York Branch v. NBM L.L.C.)
California Attorney General (Scarrot v. Wilkins)
State Governments: CT, AZ, CO, IA, KY, MD, MN, NM, OK, VT, WI, and ID (Albuquerque v. Homans; Moon v.
North Idaho Farmers Ass’n)
Individuals
•
•
•
•
10 Current and former U.S. Senators (Albuquerque v. Homans )
Secretary of State—IA, OR, NM and WI (Albuquerque v. Homans)
15 Current and former State Court Justices and Judges (Albuquerque v. Homans)
6 Military attorneys/officials (Hamdan v. Rumsfeld)
Other
•
•
United Kingdom (Hamdan v. Rumsfeld)
European Parliamentarians (Hamdan v. Rumsfeld)
30
Table 2
Logistic Regression Models†
Predictors of Groups Filing an Amicus Brief at Cert
Variables
SG invited
Media coverage (local
and national media)
Media coverage (New
York Times)
Mention in the interest
group’s newsletter
US respondent
Lower court
disagreement
Membership group
Membership group X
Media Coverage
First Amendment
Economic issue
Constant
Model I
(Standard Errors)
Model II
(Standard Errors)
Model III
(Standard Errors)
.995 **
(.41)
-
.87 **
(.36)
-
-
Dropped††
-
1.53 **
(.62)
-
Dropped††
-.07
(1.14)
.0002
(.00016)
.000008
(.00004)
4.48 ***
(1.36)
2.01 **
(.81)
-5.2 ***
(.47)
-.67
(2)
-.11
(.16)
.13
(.16)
4.8 ***
(1.4)
2.9 ***
(.74)
-5.4 ***
(.67)
Dropped††
-.15
(1.35)
-.003
(.002)
-.0003
(.001)
4.1 **
(1.4)
.82
(1.29)
-5 ***
(.47)
N = 383304
Wald χ2 = 94.9
Prob > χ2 = .0
Psudo R2 = .25
% Correctly Predicted = 98
% Reduction in Error = -8
Log Pseudolikelihood = 24839
N = 554663
Wald χ2 = 276.07
Prob > χ2 = .0
Psudo R2 = .26
% Correctly Predicted = 98
% Reduction in Error = 0
Log Pseudolikelihood = 31028
N = 554663
Wald χ2 = 73.98
Prob > χ2 = .0
Psudo R2 = .30
% Correctly Predicted = 99
% Reduction in Error = 8
Log Pseudolikelihood = 29002
***p<.001 **p<.01 *p<.05 #p<.1, one-tailed tests where directionality hypothesized.
† The results when estimating rare event logit where substantively the same.
†† Predicts outcome variable perfectly.
31
Table 3
Poisson Model†
Predictors of the Number of Amicus
Briefs a Case Attracts
Variables
Model
(Standard Errors)
SG invited
1.7 ***
(.38)
2.22 ***
(.47)
1.5
(2.1)
.67 ***
(.15)
4.5 **
(1)
-5.4 ***
(1.3)
Media coverage
Lower court
disagreement
First Amendment
Economic issue
Constant
N = 760
Wald χ2 = 236.99
Prob > χ2 = .0
Log Pseudolikelihood = -98.08
***p<.001 **p<.01 *p<.05 #p<.1, one-tailed tests
where directionality hypothesized
† Zero-Inflated Poisson, found to be more
appropriate than Poisson based on the results of the
Vuong test (Vuong 1989; Long 1997).
32
Figures
Figure 1
i
We do not argue strategic behavior on the part of organized interests, and therefore refrain from
discussing sophisticated and sincere behavior or distinguishing between the two (Zorn et al., 1999).
ii
In addition, including both types of groups in our sample is ultimately a conservative empirical
approach. It is harder to reject the null hypothesis concerning interest groups’ motivation
stemming from their constituencies, when some of the groups in the sample, for instance the nonmembership ones, do not have a clearly defined constituency, if they have one at all.
iii
The fact that the average number of petitions for review a term approximately doubled since the mid
1980s largely accounts for the fact that this figure is smaller than the corresponding figure of 7.8%
reported by Caldeira and Wright (1988).
iv
In cases where there was one, a brief filed by the Solicitor General was not counted for the
dependent variable.
33
v
Standard errors clustered on the circuit.
For instance, approximately 25% of the observations are lost when the US Respondent variable is
dropped.
vii
Specification using Salience2 (not presented here) yielded substantively indistinguishable results.
viii
According to the software documentation – “Clarify uses stochastic simulation techniques to help
researchers interpret and present their statistical results (…) As a first step, the program draws
simulations of the main and ancillary parameters from their asymptotic sampling distribution (!! )
vi
(
)
(…)” such that - !! " N !ˆ , V̂ (!ˆ ) .
”Next, Clarify converts the simulated parameters into substantively interesting quantities, such as
predicted values, (…)” (pp. 5-6) see also Tomz et al. (2001) and King et al. (2000).
ix
Furthermore, our survey of the various organizational websites indicates that amicus participation
was widespread across these groups even if their participation was not captured in our sample. This
happened more than once, for instance, when a group in our sample filed a brief, or mentioned a court
decision on its website, but the case was not a part of the sample. In addition, in some cases a group
would mention a case even if it did not file a brief. An example where a group in our sample mentions
a case from the 2004 term on their website even when it fails to participate as amicus curiae is The
National Association of College and University Attorneys (NACUA). This group used their website to
provide access to various Supreme Court decisions from the October 2004 term including Arthur
Andersen v. U.S. and MGM Studios v. Grokster. This was the case, even though NACUA did not
participate as amicus in either cert decision. This is some indication that groups publicize cases on their
website even in the absence of amicus participation, which is another important democratic function of
organized interests, not fully explored here; groups relay information from citizens to decision makers
and vice versa. The analysis of this type of democratic function of organized interests, however,
requires further research and is beyond the scope of this paper.
34