Setting the Agenda of the United States Supreme Court?
Organized Interests and the Decision to File an Amicus Curiae Brief at Cert
Katie Zuber
University at Albany, SUNY
[email protected]
Udi Sommer
Tel Aviv University
[email protected]
Jonathan Parent
University at Albany, SUNY
[email protected]
Forthcoming in Justice System Journal
Abstract: Past research indicates that amicus briefs influence the Supreme
Court's decision to issue a writ of certiorari, however we know relatively little
about the reasons that lead interest groups to file such briefs. We seek to explain
how organized interests make decisions about whether or not to file amicus curiae
briefs during case selection, and examine the factors that influence the total
number of amicus briefs filed in each case. We find that certain factors influence
amicus activity during this early stage of decision-making including the presence
of the solicitor general as amicus curiae, case salience, and the issue areas
involved in litigation.
Key Words: Amicus, Certiorari, Supreme Court, Interest Group
2
Introduction
Past research indicates that the presence of amicus curiae briefs has a profound
impact on the Supreme Court’s agenda-setting stage of decision-making. Their
content notwithstanding, justices are more likely to include a petition for certiorari in
their plenary docket as the number of amicus briefs filed at cert increases (Caldeira
and Wright 1988). Despite research indicating the importance of amicus activity at
the agenda-setting phase, however, we know relatively little about how organized
interests make decisions about which cases to participate in and why. Due to the
lack of empirical studies in this area, it is unclear what factors explain group
choice at cert and whether these are similar to or different from those that
influence the decision to file amicus briefs on the merits (see especially Hansford
2004).
The limited attention given to the process of case-selection from the
perspective of organized interests is surprising. As Collins (2004, 807) indicates,
“amicus curiae participation is a staple of interest group activity in the U.S.
Supreme Court.” Indeed, the “rising tide of amicus curiae briefs” is well
documented in the literature (Kearney and Merrill 2000, 751; see also Owens and
Epstein 2005; Epstein and Knight 1998; Caldeira and Wright 1990). However,
most empirical studies of interest group behavior examine only why groups select
litigation over other strategies (Doherty and Hayes 2012; Currier 2009; Andersen
2005; McCann 1994), or the impact such strategies have on judicial outputs
3
(Collins 2008a, 2008b, 2007, 2004; Songer and Sheehan 1993; Caldeira and
Wright 1988). As Hansford (2004) points out, far fewer studies concentrate on
why groups participate in some cases rather than others.
Several scholars have attempted to fill this gap in the literature by
examining amicus activity strictly at the merits stage of decision-making on the
United States Supreme Court (Solowiej and Collins 2009; Solberg and
Waltenburg 2006; Hansford 2004; O’Connor and Epstein 1983), and at the
intermediate appeals court level (Martinek 2006). These studies indicate that
group-specific variables including the ideological orientation of an organization
(O’Connor and Epstein 1983), as well as its level of legal expertise and budget
size (Solberg and Waltenburg 2006), all influence the decision to engage in
amicus activity. Further studies indicate that various contextual factors including
the number of groups competing in a particular policy domain (Solowiej and
Collins 2009; Solberg and Waltenburg 2006), and the informational needs of
judges (Hansford 2004), are also important. Although these studies have
expanded our theoretical understanding of amici activity, there is virtually no
work addressing these questions at earlier stages of the decision-making process.
Therefore, we ask what factors influence the decision to file an amicus curiae brief
at cert as well as what variables explain the variance in the total number of briefs
filed.
4
In the theoretical framework proposed here, we adopt the widely shared
assumption that group activity is motivated by the pursuit of policy objectives
(Solowiej and Collins 2009; Hansford 2004; Banner 2003; Hojnaki 1997; Berry
1977). Specifically, we argue that organized interests take part in cases where
they expect to exert the greatest influence on policy outputs. We concede,
however, that issues of organizational maintenance are also significant (see also
Solberg and Waltenburg 2006; Hansford 2004; Binderkrants 2004; Browne 1977).
The extent to which groups can continue to pursue their policy objectives is
obviously dependent on their ability to exist. Organized interests thus have to
consider not only where they can have the biggest policy impact, but how they
can leverage their amicus participation to achieve sustainability through increased
visibility and support.
To answer the questions presented, an original dataset was created. This
dataset captures a 10% random sample of all petitions for review from the Supreme
Court’s October Term 2004. The importance of this study is in investigating the
understudied question concerning the motivations to file briefs at cert, in
comprehending the reasons why certain petitions for review attract more briefs
and, as a result, in enabling us to gain a deeper understanding of the nature of
briefs as a democratic conduit.
5
Amicus Curiae Briefs and the United States Supreme Court
Few scholars would dispute the importance of amicus curiae briefs to the
decision-making process of the United States Supreme Court. This is because
amicus participation has been shown to impact which cases are granted plenary
review (Perry 1991; Caldeira and Wright 1988), how they are disposed of on the
merits (Daum 2009; Kearney and Merrill 2000, but see Songer and Sheehan
1993), and the legal content of opinions (Corley 2008; Pedriana 2009). Research
further indicates that the main reason why briefs are so influential is because they
provide valuable information to judges about the policy issues at stake (Hansford
2004), and about the range of implicated parties (Collins 2004; Spriggs and
Wahlbeck 1997; Caldeira and Wright 1988; Shapiro 1984). The basic logic
underpinning much of this research is that judges will produce legal doctrines and
policies that are consistent with the interests most closely affected by a decision,
particularly if they want to see those decisions implemented and enforced
(Epstein and Knight 1998).
While research has focused extensively on the influence of amicus curiae
briefs on judicial decision-making, there is comparatively little research in
political science on the decisions interest groups make in this context. Of the few
scholars who have systematically investigated the case-selection process from this
perspective, the majority have focused on the merits stage of decision-making.
Therefore, we know some about what guides interest groups to submit an amicus
6
brief on the merits (Solowiej and Collins 2009; Solberg and Waltenburg 2006;
Hansford 2004; O’Connor and Epstein 1983), but virtually nothing about their
considerations during the case selections phase. We propose a theory to test
whether the factors known to influence amicus participation on the merits are
similar to or different from those that influence amicus participation at cert.
In light of the high costs of filing a brief, case selection on the part of
organized interests is not a decision that should be taken lightly. While Caldeira
and Wright (1988) claimed that the cost of filing a single amicus brief at the
Supreme Court stood between $15,000 and $20,000 in 1988 (i.e. $24,000 and
$32,000 in 2004 dollars), more recent estimates indicate that this figure has risen
to approximately $50,000 (Lynch 2004). The expenditure of such a significant
amount of resources will be carefully considered by many organized interests,
particularly those with limited legal budgets. This is doubly true given the nature
of agenda setting on the United States Supreme Court where roughly one out of
every one hundred petitions for review is admitted into the Court’s plenary
docket. When filing a brief on the merits, a group is guaranteed that its resources
are well spent at least in the sense that the Court has already decided to review the
case. Filing at cert, on the other hand, is fundamentally different since there is no
guarantee that the investment of resources will yield tangible results. Indeed, the
likelihood of a case being tossed out by the justices at this early stage of decisionmaking is quite high.
7
Given the high level of resources at stake, we expect organized interests
to participate as amicus curiae at cert for one of two reasons. The first is because a
group expects to influence policy outputs by participating in cases that are more
likely to be reviewed by the Supreme Court, in turn resulting in a formal judicial
opinion. By participating in cert-worthy cases, groups can expect to exert a
greater impact on the law by shaping the legal questions presented to the court
and introducing solutions that are favorable to their interests.1 The second is when
a group participates in order to demonstrate their influence through credit
claiming, thus furthering their goal of organizational maintenance. By picking
cases that the justices are likely to hear, a group can tell its members and/or the
broader public that it was active in setting the Court’s agenda.
The idea that groups target the very cases the justices are likely to accept
presents a significant challenge to existing studies that claim the opposite to be
true; i.e. that amicus briefs influence the Court’s agenda setting decisions (see
especially Caldeira and Wright 1988). According to initial studies, the total
number of amicus briefs filed at cert influences the justices’ decision-making
process by communicating important information about the range of implicated
1
Supporting this claim, albeit indirectly, is Corley (2009) who demonstrates an explicit
connection between the content of Supreme Court opinions and litigant’s briefs. Her article
suggests not only that legal briefs have the potential to influence the law, but that justices and/or
their law clerks actually read the briefs (see also Samuels 2004; Collins 2004; Rehnquist 2001;
Kearney & Merrill 2000; Breyer 1998). While many scholars view amicus briefs as discursive
vehicles through which outside parties may influence both the outcome of the decision and the
content of the opinion (Duam 2009; Pedriana 2009; Corley 2009; Hansford 2004), testing for the
effects of amicus curiae briefs on judicial outcomes is beyond the scope of this analysis.
8
parties (Caldeira and Wright 1988; Shapiro 1984). According to this logic, judges
will hear cases affecting larger constituencies in an attempt to wield power over a
greater number of people. Beyond the total number of briefs, however, others
have argued that the content of such briefs (including both amicus and petitioner
briefs) also matters (Pedriana 2009; Corley 2008; Hansford 2004). Thus, the legal
content of briefs may influence justices to the extent that they are operating in
information-poor settings (Hansford 2004), or because they seek to produce legal
doctrines and policies that are consistent with the interests most closely affected
by a decision (Epstein and Knight 1999).
Despite the usefulness of such studies for understanding how amicus
participation can influence judicial decision-making, we take a different approach.
Specifically, we argue that the decision to file an amicus brief at cert is influenced
by the likelihood of the Court granting cert. According to this theory, interest
groups are more likely to participate during the agenda setting stage of decisionmaking when the increased likelihood of review makes the investment of
resources worthwhile. In the next section, we discuss the variables that influence
the decision to file an amicus brief at cert and how each of these relates to the
goals that motivate organized interests.
Determinants of Filing a Brief – Theory and Hypotheses
We begin with the premise that the activities of organized interests, including the
decision to file amicus curiae briefs at cert, are motivated by two sets of goals.
9
The first includes policy goals which are intended to bring about substantive
changes in policy that are favorable to the perceived interests of a group. Such
goals are reflected in the efforts made by organized interests to bring about legal
victories, concrete changes in public policy, and/or increased access to political
elites (Solowiej and Collins 2009; Banner 2003; Hojnaki 1997; Wasby 1995;
Staggenborg 1995; Berry 1977). The second includes goals related to
organizational growth and sustainability (Solberg and Waltenburg 2006;
Binderkrants 2004; Hansford 2004; Bernstein 2003; Walker 1983; Browne 1977).
These goals generally fall under the category of organizational maintenance and
are evident in activities designed to generate group support, as well as to increase
visibility and maintain a positive public image.
It is important to note that we refrain from making the argument that all
groups care equally about these two goals. Mobilizing members, for example, is
clearly less important to institutional groups (e.g. corporations) than to broadbased membership organizations (Hansford 2004). However, most scholars tend
to conflate organizational maintenance with the idea of strict membership support.
In contrast, we argue that additional factors beyond membership, such as the
preservation of a positive public image, are also important (Smith 2012; Gray and
Balmer 1998; Alvesson 1990). Reaching a broad public audience can be
important to both membership and non-membership groups for this reason.
Therefore, we argue that goals relating to policy and organizational maintenance
10
are important to both types of groups, albeit in different ways and for different
reasons.
Interest groups also differ considerably in terms of the resources they are
able to marshal in pursuit of their policy goals, whether in the legislative arena or,
as is the case here, via the drafting of an amicus brief. Given the expense involved
(see Caldeira and Wright 1988; Lynch 2004 above), it seems plausible that groups
with access to larger fiscal resources may be more likely to file a brief at cert
when there is no guarantee the case will be heard on the merits. A closer
examination of the organized interests that filed amici in our study, however,
reveals considerable economic diversity. At the upper end of the spectrum is the
U.S. Chamber of Commerce which reported $23.1 million in expenditures in
2008, while the New Mexico Public Research Interest Group spent only $28,264
in 2007. A list of group expenditures as reported on the IRS Form 990 for all nongovernmental groups included in this study is included in Appendix A.
Beyond the resources available to groups that may participate as amici
curiae is the sheer number of these interests that might have a stake in the
decision of the Court to grant cert. Given the open nature of amicus brief
participation, it is impossible to quantify the number of interest groups operating
in a given issue area. Nevertheless, the cases covered in our study can be
classified into three main issue categories: campaign finance (Albuquerque v.
Homas, Stumbo v.Anderson), civil liberties (Al-Marri v. Rumsfeld, Hamdan v.
11
Rumsfeld), and economic (State Farm v. Campbell, Bank of China v. NMB
L.L.C.). In terms of the former, the Campaign Finance Information Center (2006)
lists 49 national and state groups as active within that issue area, while UCLA’s
Civil Rights Project (2010) identifies 36 national-level organizations, though
neither list is likely exhaustive.
Economic issues, for their part, have the potential to attract the interest of
any number of the hundreds of professional organizations or thousands of
businesses in the country and are therefore much more difficult to categorize.
Additionally, corporations and allied interest groups have considerably more
financial resources at their disposal. As Table 1 reveals, though, only 8 of the 39
non-governmental groups that filed briefs in the cases considered here involved
business, trade, or professional organizations. Moreover, these groups limited
their participation to only five of the 778 petitions considered for review in our
sample, suggesting that their numerical and fiscal advantages did not necessarily
translate into an increased likelihood of amicus participation.
In order to identify the conditions under which groups are more likely to
file briefs at cert, we take into account a number of variables previously
considered by scholars examining the merits stage of decision-making. They
include the behavior of outside actors, case salience, and certain case
characteristics.
12
We begin with the behavior of outside actors and, more specifically, with
the Office of the Solicitor General (Nicholson and Collins 2008; Caldeira and
Wright 1988). 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 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, see also Caldeira and Wright 1988; Provine 1980). Ultimately,
amicus briefs filed by the Solicitor General at the certiorari stage have a
demonstrable influence on the likelihood of a case being granted review.
The implications of the Solicitor General’s presence for groups
participating at cert are obvious. When the justices invite the Solicitor General to
file a brief, as is most often the case, it sends a signal to organized interests that
the Court is more likely to review the case in question. In these instances, groups
should be more likely to file amicus briefs at cert because the increased likelihood
of review improves their cost-benefit ratio. Policy goals become more attainable,
13
and resources are more prudently spent, when the Supreme Court appears closer
to reaching a final decision on the merits. The information provided in these briefs
can help inform justices early on about how to dispose of a case on the merits
(and the legal reasons for doing so) in ways that are favorable to the group’s
perceived interests (Collins 2008a, 2007, 2004; Hansford 2004). Thus we expect
the likelihood of a group to file an amicus brief to increase after the Court extends
an invitation to the Solicitor General.
H1: When the Solicitor General is invited to file an amicus brief at cert,
organized interests will subsequently be more likely to file an amicus brief at cert.
The salience of issues, measured as a function of media attention, may
also be important when organized interests make decisions whether or not to file
an amicus brief at cert. The reason for this is because filing amicus briefs in
highly publicized cases enables organized interests to reach a broader audience.
Salient cases stand out on the Court’s docket thereby receiving a disproportionate
amount of attention not only from justices, but from the general public 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 in highly publicized cases in order to bolster their
public image or, in the case of membership groups specifically, to attract and
maintain membership support.
14
Exploiting issue salience by filing amicus briefs in cases that attract
increased media attention also enables organized interests to carve out specialized
“policy niches” that facilitate the recognition of differences between groups
(Solowiej and Collins 2009). Consistent with the population ecology model of
interest group communities (Gray and Lowery 1996; Browne 1990), this
argument suggests that organized interests may use amicus briefs in highly
publicized cases in order to distinguish themselves from one another, and to
demonstrate their unique policy influence to potential supporters. With respect to
membership groups, the content of the brief also serves as a type of ideological
statement that people may seek to substantiate by officially joining the
organization.
H2: The more salient the case in terms of media coverage, the more likely
an organized interest will be to file an amicus brief at cert.
Apart from the effects of external players (i.e. the Solicitor General and
the media), amicus participation may be one way organized interests take credit
for setting the Court’s agenda and aiding in the subsequent development of
changes in public policy. Indeed, amicus participation at the level of the Supreme
Court provides groups with a unique opportunity to publicly suggest solutions to
legal questions that attract supporters and challenge their opponents (Solowiej and
Collins 2008). In addition, groups can claim influence over policy when the legal
15
language and reasoning employed in their briefs are inserted into judicial opinions
(Pedriana 2009; Daum 2009; Corley 2008).
Credit claiming is especially important due to the limited legal resources
many interest groups have at their disposal and the high costs of filing a brief.
While it may be suggested that interest groups would benefit from “free riding”
(i.e. by refraining from submitting briefs when cert is likely to be granted
anyway), we disagree. The point is that resource expenditures are justified not
primarily as a means to encourage Supreme Court review. Instead, submitting a
brief is an opportunity to help frame the legal reasoning the Court is likely to
employ, as well as to highlight the group’s activities and influence to supporters.
In order to demonstrate the group’s influence over political outcomes, the
organization must publicize their amicus participation. Consequently, we suspect
organizations will refer to the lower court’s decision and/or the Supreme Court’s
impending cert decision on their websites in order to claim credit for filing a brief.
The brief itself can be made accessible to members either by having it published
in the organization’s newsletter, by making it available to constituents through the
organization’s website, or by issuing a press release describing the nature of the
group’s amicus activity.2 As such, we expect that the likelihood of a group filing
2
As we further discuss in the methods section, it is not always possible to locate the date
on which the message about the brief was posted on the group’s website. In order to solve
the potential temporal problem with the coding of this variable, we look for a mention of
the group’s amicus participation in relation to either the lower court’s decision or the
Supreme Court’s impending decision on cert.
16
at cert increases when the organization mentions the lower court’s decision and/or
the impending cert petition on their website, prior to the Supreme Court’s ruling
on cert.
H3: When an organized interest publicizes the lower court’s decision or
the petition for a writ of certiorari on their website, the group will be more likely
to file an amicus brief at cert.
As for case characteristics that may influence the decision to file a brief,
these 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 (Perry 1991; Sturley 1989), as well as the presence of a dissenting
opinion at the lower level (Caldeira and Wright 1990), tend to increase the
chances of review. We expect the increased likelihood of review in these cases to
increase amicus participation at cert for the same reasons discussed above. As
described later, coding of conflict (real or alleged) proved unworkable for the
2004 term. However, we do expect that a dissenting opinion on the lower court
would increase the likelihood of a brief by attracting the attention of judges and
signaling to organized interests the increased likelihood of review.
H4: A dissenting opinion on the lower court would increase the likelihood
that an organized interest would file an amicus brief at cert.
17
The second category of case characteristics likely to influence the decision
to file a brief is the type of case before the Court. Cases in certain issue areas are
known to attract the attention of the justices and, therefore, are more likely to be
granted review. More specifically, it has been demonstrated that cases presenting
civil liberties issues including the First Amendment have elicited the attention of
the Supreme Court (Baum 2010; Bowie and Songer 2009; Pacelle 1991;
Armstrong and Johnson 1982), as have those raising an economic issue
(O’Connor and Epstein 1983; Songer 1979). We hypothesize that interest groups
are aware of the Court’s increased propensity to hear these types of cases and,
therefore, are more likely to be willing to commit resources to them.
H5: When a case addresses First Amendment or economic issues,
organized interests will be more likely to file an amicus brief at cert.
To summarize, we predict that many of the variables discussed here will
increase amicus participation at cert in part because their presence signals to
organized interests that such cases are already more likely to be reviewed. The
investment of resources is justified in such cases because groups stand to
influence not only the cert decision, but the decision on the merits and the formal
legal content of opinions. Even if groups cannot claim credit for influencing
policy because the Court denies a petition for review, their amicus participation
still provides an important vehicle through which they can attract attention to their
position platforms, increase visibility, and claim influence on important policy
18
areas. In addition, we test the predictors of the number of briefs filed since it is the
total number of briefs known to influence the Supreme Court’s cert decision
(Caldeira and Wright 1988). Overall, we expect the predictors to be similar.
H6: When the Solicitor General is invited to file an amicus brief at cert, a
case is likely to attract an increased number of amicus briefs at cert.
H7: Increased media coverage of a case is likely to attract an increased
number of amicus briefs at cert.
H8: When disagreement appeared at the lower level, a case is likely to
attract an increased number of amicus briefs at cert.
H9: When a case addresses First Amendment or economic issues, it is
likely to attract an increased number of amicus briefs at cert.
Data and Methods
To test our theory, an original dataset was created. Data collected include a
random sample of 778 petitions for review from the Supreme Court’s October
Term 2004. The data include approximately 10% of the 7542 petitions filed that
term (Harvard Law Review Association 2005). In 3.2% of the cases in our sample
an amicus brief was filed.3 The random sample of petitions was drawn using a
random number generator. Given the nature of some of our variables, particularly
those that required an extensive search of organizational websites and newsletters,
3
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).
19
the choice of a relatively recent term of the Court (but one which preceded the
recent personnel changes) considerably facilitated data collection.
In order to test the factors that influence amicus participation 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 total number of amicus briefs filed in each case. In
cases where there was one, a brief filed by the Solicitor General was not counted
for the dependent variable.
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 filed by the Solicitor General
preceded the group’s brief. For this causal argument to be persuasive, however,
we must also know something about the amount of time which lapses between
when the Court issues its invitation and when a group files. Ultimately, groups
need time to prepare briefs. In our sample, each of the invitational orders issued
by the Court was made one full year prior to participation by any organized
interest.
20
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 organized interests more broadly. However, there are several empirical
reasons that lead us to omit it. First, the 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 variation 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 in all print news sources, both locally and at the national level,
available through LexisNexis. 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 (Hansford 2004; Epstein
and Segal 2000). Most average citizens, however, tend to rely on local news
sources to stay informed (Pew 2008; Althaus 2002). Thus, we expect the
likelihood of a group taking an interest in a case to increase as the total number of
informed citizens (i.e. potential supporters who read papers other than the New
21
York Times) also increases. If the group’s investment pays off and the Supreme
Court issues a formal opinion in some of these highly publicized cases, interest
groups will be able to claim credit in front of a much larger audience for helping
set the Court’s agenda. Finally, capturing local news coverage is important
because such coverage is known to influence public evaluations of the Court’s
decisions (Hoekstra and Segal 1996).
The national newspapers in our sample include the Christian Science
Monitor, USA Today, the Wall Street Journal, the Washington Post, and the New
York Times (Editor and Publisher 2004). Stories featured in the Associated Press
were also coded as national. Local coverage encompasses all other news sources
including truly local papers like the Dayton Daily News as well as regional papers
like the Chicago Sun Times and the Boston Herald. Although some local
reporting was picked up from the AP, original reporting was prevalent as well,
particularly in criminal cases.
Our measure of coverage ranges from the time preceding the lower court’s
decision leading up to the Supreme Court’s decision on cert. This particular
measure enables us to capture issue salience at the exact time organized interests
were deciding whether to file briefs. We expect that as media coverage and,
therefore, case salience increase, the likelihood of a group filing a brief will also
increase.
22
Salience variables were coded based on a LexisNexis search of the name
of the case, reported at both the lower court level and as petitioned to the Supreme
Court. In addition, the names of the parties to the case were also searched.
National Media Coverage is coded 1 if the case was covered by national media
outlets, 0 otherwise. Local Media Coverage is coded 1 if coverage in local media
was found, 0 otherwise. Both variables were coded 1 if media coverage was both
local and national.
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. Newsletters were coded only when they were published
online. In order to avoid potential issues with causality and temporal sequencing,
the coding for the newsletter variable was done with particular attention to the
language used on the website or newsletter. The coding was 1 only when it was
the lower court case or the Supreme Court’s impending cert decision that were
mentioned on the group’s website.
The organized interests captured in our sample included both membership
and non-membership. To control for differences in organizational structure we
coded 1 for membership groups and 0 for non-membership groups. Information
regarding the nature of an organization’s membership was derived from the
organization’s website. In rare cases where an official website did not exist, we
relied on references to these organizations made generally on the Internet.
23
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 of a Privacy Issue, a constitutional question surrounding
the First Amendment, or an Economic Question.
When the dependent variable was the dichotomous variable File (=1 if a
brief was filed; 0 otherwise), a logistic regression was estimated. When Number
was the outcome variable (counts the total number of briefs filed), 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 reported. 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 regression models as well.
The 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 government officials including senators,
judges and military officials, 12 states, 22 citizen advocacy or public interest
groups, and 8 business, trade, and/or professional associations. Thus a wide
24
variety of organized interests took advantage of the opportunity to participate as
amicus curiae at cert during the 2004 term. These participants are listed in Table
1.
(insert Table 1 here)
It is important to point out that all cases attracting organized interests
tended to elicit multiple briefs and multiple participants. Moreover, it was
common for multiple groups to sign the same brief. For example, a total of four
amicus briefs representing twelve distinct participants were filed in Hamdan v.
Rumsfeld, a case concerning the Bush Administration’s right to establish military
tribunals on Guantanamo Bay. Military officials, corporations including Google
and Cisco Systems, and advocacy groups like the Human Rights First and
Physicians for Human Rights were all present before the Court in Hamdan.
Similarly, seven amicus briefs representing well over fifteen organized interests
were filed in Albuquerque v. Homans, a case involving the constitutionality of
mandatory spending limits for local government employees. This finding is
consistent with research indicating that organized interests may cosign briefs in
part to conserve resources (Daum 2009; O’Connor and Epstein 1983).
Results
What factors influence the decision to file an amicus brief at cert? The models
presented in Table 2 clearly indicate that groups systematically consider certain
variables when deciding whether to file an amicus brief at the cert stage. Overall,
25
both models perform well. They predict correctly almost all cases and reduce the
error by approximately 40%.
(insert Table 2 here)
In support of H1, the coefficient on the Solicitor General variable in
Model I indicates that organized interests are far more likely to file a brief when
the Court invites a brief from the Solicitor General. This finding is highly
significant. Salience, as measured by media coverage at the local and national
levels, also increases the likelihood of an organized interest filing a brief. The
highly significant finding for this variable lends strong support to H2. As for H3,
the Group’s Newsletter variable was dropped from the analysis because of perfect
correlation with the outcome variable, however, this finding is still important. In
nearly all cases where an appeal was made to the group’s constituency regarding a
specific case, an amicus brief was filed. Not surprisingly, our examination of
organizational websites indicates that it was incredibly rare for an organization to
mention a particular case in their newsletter or on their website in the absence of
amicus participation. Although perfect correlation resulted in the statistical
software dropping the variable from the multivariate analysis, there appears to be
a strong relationship between appeal to the group’s constituency and the decision
to file. Counter to our expectations, disagreement on the lower court had no
systematic effect, providing little support for H4.
26
Model II controls for the types of issue areas raised by the case.4 Whereas
the effect of local media coverage is now only marginally significant, the effect of
First Amendment issue is highly significant and in the anticipated direction. The
effect of Economic Issue is also in the anticipated direction, but fails to reach
standard levels of statistical significance. Privacy Issue was dropped, indicating a
perfect correlation with the dependent variable. Although support for H6 is thus
only partial, it does comport with the Court’s general tendency to emphasize civil
liberties issues, the most important of which are freedom of expression and
freedom of religion, over economic issues (Baum 2010; Pacelle 1991).
To more fully appreciate the effects of the models in Table 2, Figure 1
presents predicted probabilities for Model II calculated using CLARIFY.5 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, an amicus
brief filed by the Solicitor General (the four columns on the left) increases the
likelihood that a group will file a brief in the same case. Likewise, the effects of a
First Amendment issue and of national coverage are clear. Most striking is the
4
5
The observations dropped because of perfect correlations limit the total number of observations.
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 (!! ) (…)” 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 King et al. (2000).
27
combined effect of the different predictors. While we expect to see a brief filed in
virtually every First Amendment case involving the Solicitor General and covered
by the national media, the predicted probability drops to .26 when the case wins
only national coverage. The predicted probability of a brief drops further to .01
when the case receives no national coverage, fails to raise a First Amendment
question, and when the Solicitor General fails to participate.
(insert Figure 1 here)
Why do some cases attract more group attention than others? The analysis
in Table 3 offers some insight into this question. In support of H6, the Solicitor
General variable has a positive and highly significant coefficient; thus a case in
which the Court invited the federal government to file a brief on cert is likely to
attract a greater number of amicus briefs overall. Likewise, in accordance with
H7, media coverage also increases the total number of amicus briefs filed by
amici at cert. While there is no support for H8 (Lower Court Disagreement is
indistinguishable from zero in both), H9 wins considerable support. The
coefficients on the issue area variables are positive and highly significant
indicating that both economic and First Amendment cases attract a greater
number of briefs. To summarize, a judicial invitation to the Solicitor General,
increased media coverage, and the presence of certain issues all increase the total
number of briefs filed by amici at cert.
(insert Table 3 here)
28
Discussion and Conclusions
Unlike much of the literature in political science on this topic, we do not
examine the effects of amicus briefs on judicial decision making, or the decision
to file an amicus brief on the merits. Rather, our goal was to analyze why groups
file amicus briefs at cert, and to further examine the factors that influence the total
number of briefs filed in each case. Overall, our results indicate that some of the
factors that influence amicus participation at cert are in fact similar to those that
influence the merits stage of decision-making. These include the presence of the
Solicitor General and increased media attention (see especially Hansford 2004).
Our findings further indicate, however, that additional factors, such as the
presence of a First Amendment issue, are also important.
With respect to the decision on the merits, Hansford (2004) has argued
that organized interests will file an amicus brief when they have the greatest
chance of influencing the legal rule established by the opinion. This opportunity
presents itself, according to Hansford, when the Court is operating in an
information-poor setting. We agree that groups care a great deal about influencing
legal rules and policy outputs. It is precisely this reason why they are more likely
to participate in cert-worthy cases. The early investment of resources at cert is
justified in such cases because groups expect to influence how they are disposed
of on the merits. Ultimately, these findings call into question the belief that the
decision to file an amicus briefs at cert is exogenous to the Court’s decision to
29
grant cert (see Caldeira and Wrights 1988). In contrast, the data strongly indicate
that groups tend to be reactive when filing amicus curiae briefs by responding to
signals about which cases are most likely to be reviewed.
Turning now to the specific variables in question, we argue that the
presence of the Solicitor General at cert is significant not only because it signals
to groups that the justice are operating in an information poor setting, as Hansford
suggests, but because it also indicates that a case is more likely to be reviewed.
The same can be said of other indicators of cert-worthiness beyond the Solicitor
General’s participation including, most notably, the presence of a First
Amendment issue. As previously indicated, the main advantage of participating as
amicus curiae in cert-worthy cases is that it improves a group’s chances of
influencing the subsequent direction of public policy and creates opportunities for
credit claiming. Indeed, the Court’s agenda setting choices are noteworthy
precisely because they open (or close) alternative paths to policy change.
The positive and statistically significant finding for media coverage
further indicates that groups will participate as amicus curiae at cert when they
can leverage their participation to increase visibility and perceived influence.
Hansford has argued that membership groups will file amicus briefs on the merits
when increased media coverage improves the likelihood of mobilizing
membership support. However, our results indicate a similar finding for both
30
membership and non-membership groups at cert.6 Therefore, we argue that most
groups care about increasing visibility, maintaining a positive public image, and
appearing influential, even if they are less constrained by membership concerns.
Scholars have long used the presence of an amicus brief as an indicator of
case salience (Samuels 2004; Wasby 1995; McGuire and Caldeira 1993; Caldeira
and Wright 1988). Our findings support the validity of this measure. Specifically,
our theory suggests that amicus briefs are filed more often in salient cases,
measured as a function of increased media coverage. This gives credence to the
wide use of both increased media coverage as well as amicus participation as
valid measures for case salience.
Although our findings are important to future organizational studies and to
studies of agenda-setting on the United States Supreme Court, we would be
remiss if we failed to mention one important limitation of our data. Specifically,
although our complex dataset consists of over 750 randomly selected petitions for
review from the October 2004 term, our sample includes only twelve cases in
which one or more groups filed an amicus brief. This limited variation in terms of
amicus participation is undoubtedly an artifact of the small number of briefs
generally filed at cert. Indeed, the level of amicus participation among organized
6
To further test the notion that membership groups care more about case salience than
non-membership groups, we included an interaction term capturing the relationship
between organizational structure (i.e. membership versus non-membership groups) and
media coverage in an analysis not shown here. However, the interaction term failed to
reach standard levels of statistical significance.
31
interests is known to increase significantly at the merits stage of decision-making
(Caldeira and Wright 1990). However, in light of the overall lack of research
regarding the factors that influence the decision to file an amicus brief at cert, we
happily concede that our research in this area is as much exploratory as it is
explanatory. Thus, we invite other scholars to expand on our work in hopes of
gaining greater purchase on the theoretical framework offered here.
Finally, our work contributes to recent scholarship focusing on
organizational behavior and the decision to lobby the United States Supreme
Court. While many scholars working in this area underscore the informational
value of briefs (e.g. Collins 2008a; Hansford 2004; Spriggs and Wahlbeck 1997;
Caldeira and Wright 1988), our analysis draws attention to the role of amicus
briefs as a critical conduit of democratic input. Several 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. The national media, for
instance, reflects the concerns of the public at large which, in turn, influences
amicus participation. The same applies to local media which are more focused on
the concerns of citizens implicated by the case at hand (Hoekstra and Segal 1996).
When local media outlets cover the case, they indirectly affect the democratic
process at the national level.
More importantly, our research suggests that the concerns and interests of
the particular constituencies of the groups are also brought to bear on the
32
democratic process writ large, reflected by the decision to advertise amicus
activity to supporters through organizational newsletters and on their websites.7
Amicus curiae briefs thus serve as an important vehicle through which popular
preferences are relayed to Supreme Court justices. The expressive function served
by amicus briefs is especially important given that they are sometimes the only
means available to outside parties to influence litigation. When organized
interests lack the resources to sponsor a case, they can still send important
messages to judges by filing their own briefs or by joining that of an ally. In fact,
the formation of interest group coalitions and the reason why some groups form
alliances to file briefs is another important area for future work.
7
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.
33
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Tables
TABLE 1
Massachusetts Committee for Public Counsel 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)
Table 2
Logit Regression Models
Predictors of whether a Brief was Filed
Variable
Model I
(Standard Errors)
Model II
(Standard Errors)
Amicus by the SG
3.8 ***
(1.03)
3.0 *
(1.38)
1.53 *
(.71)
.5
(.98)
dropped
4.5 ***
(1.1)
3.4 *
(1.6)
1.4
(.9)
.72
(.97)
dropped
n/a
6.06 ***
(1.07)
dropped
National Media Coverage
Local Media Coverage
Lower Court Disagreement
Mention in the Interest Group’s
Newsletter
First Amendment Issue
Privacy Issue
n/a
Economic Issue
n/a
Constant
-4.5 ***
(.4)
1.4
(.9)
-5.3 ***
(.6)
N = 672
N = 445
LR χ2 = 37.71
LR χ2 = 67.59
Prob > χ2 = .0
Prob > χ2 = .0
2
Pseudo R = .26
Pseudo R2 = .51
% Reduction in Error = 45 % Reduction in Error = 39
% Correctly Predicted = 98 % Correctly Predicted = 98
***p<.001 **p<.01 *p<.05, one-tailed tests where directionality hypothesized.
43
Table 3
Poisson Model†
Predictors of the Number of Amicus Briefs a Case Attracts
Variables
SG invited
Media coverage
Lower court disagreement
First Amendment
Economic issue
Constant
Model
(Standard Errors††)
1.7 ***
(.38)
2.22 ***
(.47)
1.5
(2.1)
.67 ***
(.15)
4.5 **
(1)
-5.4 ***
(1.3)
N = 778
Wald χ2 = 236.99
Prob > χ2 = .0
Log Pseudolikelihood = -98.08
***p<.001 **p<.01 *p<.05, 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).
†† Clustered on the circuit.
44
Figures
Figure 1
Predicted Probabilities: Filing an Amicus Brief
at Cert
National coverage & First Amendment
NO National coverage & First Amendment
National coverage & NO First Amendment
Predicted Probability
NO National coverage & NO First Amendment
1
0.8
0.6
0.99
0.4
0.96
0.89
0.99
0.54
0.8
0.25
0.2
0.01
0
Brief filed by the SG
No brief filed by the SG
45
Appendix A
2008 Expenditure by Non-­‐Governmental Groups as Amici Group Expenditures Property Casualty Insurers of Am. $5,500,000 Cisco Systems Inc. $10,026,963 US Chamber of Commerce $23,100,000 Google Inc. $2,431,819 Human Rights USA $964,070 Brennan Center for Justice $5,612,172* Common Cause $7,952,261 National Voting Rights Institute Defunct TheRestofUs.org Defunct New Mexico PIRG $28,264*** Public Campaign $2,126,549 Citizens or Res. & Ethics in Wash. $1,716,537 Reclaim Democracy $49,479** NAACP $21,472,053 Fannie Lou Hamer Project $427,349* Asian Am. Justice Center $3,257,922 Equal Justice Society $943,440* Latino Issue Forum $1,454,103 Greenling Institute $4,288,891 Human Rights First $9,668,072 Physicians for Human Rights $5,055,440 Washington Legal Foundation $3,315,799* Source: 2008 IRS Form 990 * 2000 **2003 ***2007 46