Some of the findings simply confirm our intuitions.
The American Civil Liberties Union is, to say the least, active when it comes to lobbying the United States Supreme Court.
The Christian Law Society is, conventionally speaking, politically to the right of the Court.
Yes, some of the data presented at the Nov. 17 Workshop on Judicial Behavior is of the could’ve-guessed-that variety. However, there is certainly value in the fact that someone has finally taken the time to collect and examine data related to that most curious of legal animals, the Supreme Court amicus brief, and put hard numbers to those intuitions.
That someone is Stanford University Law School professor Daniel E. Ho, along with UVA law professor Joshua Fischman and law student Alexandra Dunworth, recently completed an extensive study of amicus briefs filed in Supreme Court cases. The study began with briefs filed in 1979, and collected data on positions taken in all of them through 2006. This covers the period when the availability of such briefs in the Lexis database is most comprehensive.
An amicus brief, as most in the legal community know, is a brief filed by an outside party supporting one or the other party in a dispute that reaches the Court (amicus briefs are also filed in circuit courts). Ho’s paper, “The Myth of Policy Voting: What Amici Tells Us About Law,” is based on data mined from a study of 14,000 briefs filed by more than 600 amicus groups over nearly three decades. The final results, charted exhaustively in the paper, focus on about one-hundred of the most active filing groups, including the ACLU (430 briefs), National Association of Criminal Defense Lawyers (262), and the National Association of Counties (242).
To be sure, some of the results were predictable.
“Simple intuition,” Ho himself admitted, “underscores the approach of the paper.”
But that doesn’t mean that there were no surprises emerging from the massive data analysis.
“The fact that overwhelmingly all of these groups land either to the left or to the right of the Court was a surprise to us,” Ho said. “We thought there may hae been more moderate groups.”
For example, even in unanimous Court decisions, interests groups remain active. An amici is 30 times more likely to disagree with a unanimous decision than a single justice is to write a lone wolf dissent.
Why hop on board that kind of lost cause?
One hypothesis: mobilization. Filing a losing brief could be a way to mobilize support amongst potential donors and members of the group.
This may be true in those aforementioned unanimous decisions, when interest groups like the ACLU stand little chance of swaying the Court, but still expend resources writing and filing a brief.
Charted according to the data, the nine justices, even supposedly reliably partisan justices like Antonin Scalia and John Paul Stevens, were all situated squarely in the political center, with the amici stretching out far in each direction on the spectrum.
The rise of the amicus brief is a relatively recent phenomenon. In the 1980s, an amicus brief was filed in approximately 74 percent of Supreme Court cases. Since 2000, that number has soared to 95 percent. There are also, today, more amicus briefs filed in each individual case than ever before. In the 1980s, there were just under four amicus briefs, on average, filed in each case. By the 2000s, that figure was nearly eight.
Two cases, an affirmative action challenge regarding the admissions process at the University of Michigan and a Pledge of Allegiance-centered church-and-state case in suburban Chicago, drew a combined 206 amicus briefs.
During the workshop, Ho’s data and conclusions were subjected to much scrutiny by many of the judges and scholars in the audience. For example, the study excluded briefs filed by influential government entities like the Solicitor General as well as administrative agencies. In theory, those briefs may be more valuable because they are filed for pure policy purposes, and for mobilization.
Perhaps most humorously, Seventh Circuit Judge Richard Posner expressed contempt for one illustration of the project, using a 2008 New York Time Magazine piece by George Washington law professor Jeffrey Rosen that relied on statistics about the Chamber of Commerce, which claimed to reveal the Court’s pro-business bias.
“He’s a journalist!” Posner snarled. “You’re a serious academic.”
Regardless, the study provides one way to measure the political impulses of the justices against a baseline of partisan interest groups.
And for those who see pure jurisprudence, separated from political concerns, as the ideal, the results are promising.
As the paper concludes: “With this rich data, we have shown that the justices are either centrists or discernibly not raw policymakers.”