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Wednesday, November 16, 2016

Larsen and Devins on the "Amicus Machine"

Scotusblog has this post by Allison Orr Larsen and Neal Devins on the rising number of amicus briefs, and the heightened focus on obtaining briefs from Supreme Court practitioners to maximize a case's chances of being heard and a successful outcome. The post begins:

We are living in the age of the Supreme Court amicus. Last term, amici curiae, or “friends of the court,” filed 863 briefs at the court – an average of 13 per case argued – and the justices cited these briefs in 54 percent of the cases they decided. This is the new normal. Over the past six terms, as Anthony Franze and R. Reed Anderson have shown, approximately 800 amicus briefs were filed in 93-98 percent of all cases, with marquee end-of-June cases attracting briefs in the triple digits. That is over an 800-percent increase in submissions from the 1950s and a 95-percent increase from 1995. Although nobody can say for sure whether these briefs actually change case outcomes, it is clear that the justices are citing them regularly and that there are more and more “friendly” briefs from which to choose. The amicus growth spurt is significant and shows no sign of slowing down.
The post refers to Larsen and Devins' forthcoming article, The Amicus Machine, which can be downloaded here. Here is the abstract:
The Supreme Court receives a record-number of amicus curiae briefs and cites to them with increasing regularity. Amicus briefs have also become influential in determining which cases the Court will hear. It thus becomes important to ask: Where do these briefs come from? The traditional tale describes amicus briefs as the product of interest group lobbying. But that story is incomplete and outdated. Today, skilled and specialized advocates of the Supreme Court bar strategize about what issues the Court should hear and from whom they should hear them. They then “wrangle” the necessary amici and “whisper” to coordinate message. The result is orchestrated and intentional – the product of what we call “the amicus machine.” 
This Article has two goals: (1) The first is to offer a new description of the origin of many Supreme Court amicus briefs, explaining how it is that the Justices and the advocates benefit from this choreographed amicus process. (2) Second, we make the perhaps surprising claim that the amicus machine is normatively desirable. Others have warned about the influence of the powerful lawyers of the Supreme Court bar generally. While acknowledging these risks, we argue that – when it comes to amicus briefs – the benefits of specialization outweigh the costs.
One area of amicus participation that may draw less attention is the filing of amicus briefs at the certiorari stage -- where the Supreme Court considers whether to take a case. The Supreme Court only grants certiorari to a small fraction of cases, and Larsen and Devins note that amicus participation at the certiorari stage may greatly increase the chances that the Supreme Court will hear the case.

As the abstract shows, Larsen and Devins ultimately argue that the trend toward amicus briefs is a good one. From the post:

In an era of infinite information and virtually limitless briefs, coordination efforts by Supreme Court experts are a controlling force on a potentially unruly system. At the end of the day, the amicus machine may be a virtue, and not a vice, of current Supreme Court practice.
The article elaborates that while businesses may have an advantage in obtaining amicus participation, particularly at the certiorari stage, there are several Supreme Court specialists who "regularly represent individual interests" who obtain amicus briefs at a rate similar to those lawyers who represent businesses.

Amicus participation in cases before the Supreme Court is a growing phenomenon, and is of critical importance at the certiorari stage. I hope that Larsen and Devins, or others with similar research interests expand the investigation of amicus participation to other jurisdictions, such as courts of appeal and state courts, to see if the trends observed in the Supreme Court remain consistent.

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