Do Judges Read Amicus Curiae Briefs?

A record number of amicus curiae (“friend of the court”) briefs were filed in the two cases challenging the University of Michigan’s affirmative action policy, which the Supreme Court heard this morning. Do the justices really pay attention to amicus briefs?

Amicus briefs do matter, though they rarely, if ever, make or break a case. They’re most effective when they succinctly point out potential long-term consequences that the court might not otherwise recognize. In the current cases, Gratz v. Bollinger and Grutter v. Bollinger, for example, one of the 100-plus amicus briefs was filed on behalf of a group of former military leaders, including Norman Schwarzkopf. The brief argues that a decision for the plaintiffs would hamper the military’s efforts to build a diverse officer corps since so many career soldiers come from campus ROTC programs. And dozens of Fortune 500 companies have weighed in with their two cents, contending that affirmative action abets workplace diversity, which in turn makes the private sector more competitive in global markets. (More than three-quarters of the amicus briefs in the Michigan cases support the university’s case.)

The justices may not read each and every amicus brief in its entirety, but their clerks are adept at excerpting the meat of the most relevant ones. In regard to the 1989 abortion case Webster v. Reproductive Health Services, Justice Stephen Breyer later remarked that amicus briefs from medical groups “play[ed] an important role in educating judges on potentially relevant technical matters, helping to make us, not experts, but educated laypersons, and thereby helping to improve the quality of our decisions.” And in the famous Bakke case of 1978, which struck down racial quotas but left the door open for affirmative action, Justice Lewis Powell cited the quota-free “Harvard plan” as a model for attaining on-campus diversity; it’s believed that he learned of this admissions plan by reading Harvard’s amicus brief. [Correction, 4/3/03: As several readers pointed out, Breyer wasn’t referring to Webster, which predates his appointment to the court. He was referring to two cases dealing with assisted suicide.]

On rare occasions, the court may actually request that a third-party expert file an amicus brief. More often than not, however, filings are unsolicited. According to Rule 37 of the  Rules of the Supreme Court of the United States, an amicus brief is supposed to bring “to the attention of the Court relevant matter not already brought to its attention by the [involved] parties.” In order to file such a brief, an interested third party must first try and obtain written consent from both the petitioner and the respondent in the case. If one or the other side objects, the third party can ask the court for a “motion of leave” to clear the way. Over 80 percent of such motions are granted.

These days, amicus briefs are being filed more and more often. According to a 2000 University of Pennsylvania Law Review study, the number of amicus briefs filed annually to the Supreme Court has increased 800 percent since the mid-1940s. Eighty-five percent of the court’s cases now invite such briefs, as opposed to a mere 10 percent in the early to mid-1900s.

Not every amicus brief is treated with equal weight. There are certain “trusted sources,” such as the solicitor general and the states, that the court is believed to respect above others, such as the avalanche of filings from the ACLU, the NAACP, and other advocacy groups.

Next question?

Explainer thanks Lincoln Caplan from YaleLawSchool.