The Influence of Amicus Curiae Briefs on the Supreme Court

Abstract

The last century has seen little change in the conduct of litigation before the United States Supreme Court. The Court's familiar procedures – the October Term, the opening-answering-reply brief format for the parties, oral argument before a nine-member Court – remain essentially as before. The few changes that have occurred, such as shortening the time for oral argument, have not been dramatic.\nThe Article is organized as follows. Part I provides an overview of amicus curiae activity in the Supreme Court over the last fifty years, tracking the increase in amicus filings and in the Court's citation and quotation of such briefs. Part II traces the emergence of the Court's open door policy toward amicus filings starting in the late 1950s, and the impact of this policy on the frequency of amicus filings. Part III reviews the conflicting results of previous studies that have sought to measure the influence of amicus briefs on the Supreme Court. Part IV posits three models of judicial behavior that underlie commentary about amicus curiae briefs and sets forth the hypotheses about amicus influence associated with each model. Part V summarizes the major findings of our empirical survey. Part VI closes with some reflections on the factors that may account for the surge in amicus curiae activity in the Supreme Court in the last fifty years.

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