Madigan v. Levin and the Relevance of Legal Academics

At Volokh Conspiracy, Will Baude posts about oral argument in the case, Madigan v. Levin and notes that the justices relied heavily on one of the amicus briefs, written by Stephen I. Vladeck, a law professor and Associate Dean at American University, in their questioning.  At SCOTUSBlog, Lyle Denniston remarks:

[A] brief that had been filed by law professors who specialize in the arcane field of court procedure had obviously drawn the Court’s attention, and the Justices spent so much time on whether the Seventh Circuit Court even had jurisdiction to decide anything that Illinois Solicitor General Michael A. Scodro had little time to argue against Levin’s constitutional claim.

As I mentioned in this previous post, there are some choice strategies that one can adopt in writing legal scholarship in order to maximize one's chances of being cited by the Supreme Court.  This case sheds light on an alternative means by which academics may influence opinions -- the writing of amicus briefs.  

Much has been written on amicus briefs in the Supreme Court.  For an informative survey of the amicus brief submission patterns and the Court's reliance on these briefs during the 2011-12 term, see this article from the National Law Journal.  The authors, Anthony J. Franze and R. Reeves Anderson, note that the Court cited the amicus briefs of academics five times over the course of the term.  For criticism of scholarly amicus briefs on the ground that scholars are two hasty in signing onto these briefs, see Richard H. Fallon, Jr.'s article here.  For an older, but more exhaustive treatment of amicus brief submission patterns and influence, see this article by Joseph D. Kearny and Thomas W. Merrill.

Notably, in Madigan, the brief was not filed on behalf of either party, and focused solely on arguing that the appellate court had made a mistake in jurisdiction.  The disinterested nature of the brief and its focus on issues that were unaddressed by the parties and amici likely contributed to the brief's credibility and made it more likely that the brief would be cited by the Justices.

While the Court has only just heard oral argument in the case, and while it is impossible to say with certainty how the Court will decide the case, the Court's focus on the issues raised in Vladeck's brief make it very likely that their decision will ultimately address the issue that Vladeck raises -- and their focus on the issue in oral argument indicates that Vladeck's argument might have a substantial impact on the outcome.

Ultimately, this story gives hope to those legal academics who want their work to have a direct impact on the workings of courts.  Even if one's area of study is obscure or "arcane," in certain circumstances, one's scholarship may very well contain the decisive arguments for a case before a court.