Assessing the Anecdotes: Amicus Curiae, Legal Rules, and the U.S. Supreme Court

Use of extra-legal sources in amicus curiae briefs submitted in Fisher v. University of Texas at Austin

“…In fact, most recent work identifies that amicus briefs are submitted in approximately 90% of cases before the Court (Simpson & Vasaly, 2015), up from only 71% between 1980 and 1991. Studies over the last 30 years of amicus briefs submitted to the U.S. Supreme Court have focused on issues of impact, generating mixed conclusions as to their effectiveness (e.g., Caldeira & Wright, 1988, 1990Collins, 2004Collins, , 2007Collins, , 2008Collins, Corley, & Hamner, 2015;Larsen, 2014;Songer & Sheehan, 1993;Wofford, 2015), as well as strategies for making them effective (e.g., Ennis, 1984;Grisso & Saks, 1991;Lynch, 2004;Melton, 1987;Morgan & Pullin, 2010;Zuber, Somer, & Parent, 2015). According to Simpson and Vasaly (2015), however, "there is no doubt that the proliferation of amicus briefs is the result of their perceived impact on the Court's decisions" (p. 11) with evidence of such impact in cases such as Grutter v. Bollinger and Romer v. Evans.…”

Shaping Educational Policy Through the Courts: The Use of Social Science Research in Amicus Briefs in Fisher I

“…From 1986 to 1995, however, 4,907 briefs were filed (Kearney & Merrill, 2000). In addition, research studying amicus briefs submitted to the U.S. Supreme Court has focused on issues of influence, generating mixed conclusions as to their effectiveness (e.g., Caldeira & Wright, 1988, 1990; Collins, 2004, 2007, 2008; Larsen, 2014; Songer & Sheehan, 1993; Wofford, 2015) as well as strategies for making them effective (e.g., Ennis, 1984; Grisso & Saks, 1991; Lynch, 2004; Melton, 1987; Morgan & Pullin, 2010; Zuber, Sommer, & Parent, 2015). For example, some studies find that these briefs have little or marginal influence (Collins, 2004; Songer & Sheehan, 1993; Welner, 2012).…”

Playing for the Rules: How and Why New Christian Right Public Interest Law Firms Invest in Secular Litigation

“…If we narrowly define the desire to have policy influence as an explanatory variable—defining it, for instance, as a group's desire to influence the outcome of cases within its well‐defined mission or policy agenda—then the choice of these NCR PILFs to engage in secular litigation seems quite puzzling. If we accept an expanded definition of policy influence that includes the desire to influence “legal rules” (Wofford ; Hansford ; Galanter ) or takes into consideration the radiating effects of certain cases on related areas of law and lateral precedent (Hollis‐Brusky ; Silverstein ), then the decision to litigate a subset of these uncharacteristic cases starts to make more sense. In assessing policy influence, we examined both the explicitly stated goals of the PILF in its brief and also examined the content of the brief for evidence tying a favorable ruling in the case to the PILF's core policy goals as defined on its website and other publicly available documents.…”

“…The category of school expression , representing eleven cases from all four PILFs under study (see Figure ), claimed the second spot overall in terms of secular issue type most frequently litigated. While none of these cases involved issues of religious liberty, the logic of how precedent is used and how broadly or how narrowly the legal rules (Wofford ; Hansford ) are applied in these cases could have important consequences for future litigation in the area of religious speech and expression. After all, as previous scholarship has chronicled in great detail, it was the reframing of religious liberty claims as speech and expression claims that initially opened the door to success for religious groups that previously had been on the losing end of Supreme Court decisions (Silverstein ; Hacker ; Brown ).…”

“…A concern for the establishment of favorable or unfavorable legal rules (Wofford ; Hansford ; Galanter ) also helps explain the decision of these NCR PILFs to participate in cases involving the applicability of international treaties to criminal prosecutions that are unrelated to the substantive issues at the center of their agendas. For example, in the amicus curiae brief it submitted in the Supreme Court case Bond v United States ()—a case involving the applicability of a section of the Chemical Weapons Convention Implementation Act to a case of domestic simple assault—Sekulow and attorneys for the ACLJ explain how a ruling that broadly interpreted the reach of this treaty would promulgate a very dangerous legal rule that would give the international community de facto rule over areas traditionally belonging to states and local governments.…”