Friends You Can Trust: A Signaling Theory of Interest Group Litigation Before the U.S. Supreme Court

How do interest groups influence U.S. Supreme Court justices to vote in favor of their preferred outcomes? Following prior research on the influence of the Solicitor General, we develop and expand on the signaling theory of interest group influence via amicus curie briefs. We argue that an interest group's ideological reputation and the nature of the ideological signal it sends in its brief both function as powerful heuristics that convey information to the justices depending on the justices' own ideological preferences. When an organization files an amicus brief advocating for an outcome seemingly contrary to its traditional preferences (i.e., an unexpected signal), this signal should be more noticeable and credible than a signal in accordance with a group's conventional views (i.e., an expected signal). However, unexpected signals should have greater influence on justices who share the brief filer's preferences. We test our signaling theory on the terms from 1991 through 2002. We find that unexpected signals (but not expected signals) are associated with Supreme Court voting, and the influence of unexpected signals appears to be particularly strong among justices who share the ideological preferences of the brief filer.     

Friends of the Court: Examining the Influence of Amicus Curiae Participation in U.S. Supreme Court Litigation

Amicus curiae participation is a staple of interest group activity in the U.S. Supreme Court. While a reasonably large body of scholarship has accumulated regarding the effectiveness of this method of participation, little attention has been paid to examining the reasons why amicus participation might increase litigation success. In this article, I test two separate, but not mutually exclusive, theories as to why amicus briefs may be effective. The first, the affected groups hypothesis, suggests amicus briefs are influential because they signal to the Court how many groups and individuals will be potentially affected by the decision. The second, the information hypothesis, proposes that amicus briefs are effective because they provide the Court with added information that buttresses the arguments of the direct parties. When subjected to empirical verification, the results indicate that not only does amicus participation increase litigation success, but also that this influence may be best explained by the information hypothesis.     

Interest Group Participation, Competition, and Conflict in the U.S. Supreme Court

In this article, we analyze how pluralistic, competitive, and conflictual interest group amicus curiae participation is in the U.S. Supreme Court. Examining participating organizations and briefs during the 1995 term, we address three inquiries. First, we scrutinize the types of organized interests who participate as amici curiae. We find that the Court is open to a wide array of interests and that particular types of groups do not dominate amicus activity. Second, we analyze the frequency with which amici file briefs on opposing sides of dispute. We reveal few strict patterns of competition, suggesting that Supreme Court cases are salient to a diverse spectrum of interest groups, many of which are not usually thought of as being in competition with one another. Third, we investigate how often and which amici directly cite one another for purposes of invalidating each other's argumentation. While amici have a great deal of opportunity for this form of direct conflict, it is surprisingly rare. Nonetheless, when amici engage in this express form of discord, they play a clear role in shaping the flow of information at the Court.     

“Friends as Foes: The Amicus Curiae Participation and Effectiveness of the American Civil Liberties Union and Americans for Effective Law Enforcement in Criminal Cases, 1969–1982”*

Scholars have long recognized that interest groups realize the importance of the courts as policymakers and as vehicles of social and political change. We examined the amicus curiae participation of the American Civil Liberties Union and Americans for Effective Law Enforcement in criminal cases before the Burger Court from 1969–1982. We found that AELE, a conservative law-enforcement organization, has been the most successful interest group as participant as amid. Moreover, we found that criminal law is yet another area of law in which interest groups are using the Supreme Court to achieve and protect their policy interests.     

Social science in Supreme Court criminal cases and briefs

This article describes citations of social science research evidence in 200 criminal cases decided by the Supreme Court and in the briefs filed by the parties and amici curiae in these cases. It also examines the uses of social science authorities in samples of Supreme Court exclusionary rule and jury decisionmaking cases, and accompanying briefs. The correspondence between the social science references cited in the decisions and the briefs is used as one measure of the brief-writers' contributions to the Court's use of social science materials, and related contributions of the brief-writers are explored, as well. The justices appeared to locate the majority of social science references cited in their opinions without assistance from the briefs, and thus also presumably attempted to evaluate the research evidence on their own. Individuals and organizations with scientific expertise rarely filed amicus briefs in these cases, which may help explain why the Court so frequently was without assistance in locating or examining research evidence. It is suggested that the appellate judiciary's informed use of social science materials would be promoted if more social scientists, and their professional organizations, participated as amici curiae in cases presenting social fact issues within their competence.     

Opinion Construction in the Roberts Court

The Supreme Court's main output is the decision on the merits. Little is known, however, about how such decisions are constructed. This article is one of the first to look at the way Supreme Court opinions are constructed by examining the impact of the core linguistic resources at the Court's disposal. It does so in a novel manner by measuring the Court's reliance on wording from parties’ merits filings, amicus briefs, and lower‐court opinions between the 2005 and 2014 terms. To accomplish this goal, the article compares language in over 13,000 documents in the Court's docket during this period with their respective majority opinions. The article then looks at the relative impact of parties’ briefs and filings, amicus curiae briefs, and lower‐court opinions on the Court's majority opinion language. This article provides both macro– and microlevel analyses by locating the relative effects of these linguistic resources on the Court's overall opinion language as well as by breaking these findings down by individual justice. In the aggregate, this article finds that, of the three resources analyzed, the Court tends to use language from parties’ merits briefs most frequently, then wording from lower‐court opinions, and the least from amicus briefs, but that differences in case level factors shift the relative utility of each of these three resources.     

The Influence of Public Sentiment on Supreme Court Opinion Clarity

We examine whether public opinion leads Supreme Court justices to alter the content of their opinions. We argue that when justices anticipate public opposition to their decisions, they write clearer opinions. We develop a novel measure of opinion clarity based on multifaceted textual readability scores, which we validate using human raters. We examine an aggregate time series analysis of the influence of public mood on opinion clarity and an individual‐level sample of Supreme Court cases paired with issue‐specific public opinion polls. The empirical results from both models show that justices write clearer opinions when their rulings contradict popular sentiment. These results suggest public opinion influences the Court, and suggest that future scholarship should analyze how public opinion influences the written content of decision makers’ policies.     

Deciding Not to Decide: The Politics of Recusals on the U.S. Supreme Court

When are U.S. Supreme Court justices more likely to recuse themselves from cases? This article proposes a strategic model of recusal behavior, hypothesizing that the justices balance statutory guidelines concerning recusals against other policy and institutional goals. Using data from the Supreme Court Database, I find evidence that recusal behavior is influenced by a combination of statutory, policy, and institutional considerations. Consistent with statutory explanations, which emphasize the elimination of bias or its appearance, justices are more likely to recuse themselves from cases when business interests are before the Court, when they have served for shorter terms, and when they have previously acted as Solicitor General. However, I also find that the justices are less likely to recuse themselves when cases are likely to be close or when the justices' policy goals are likely to be advanced by participating. These findings suggest that while the justices do follow statutory recusal guidelines, they also have other institutional and policy incentives that lead them to participate in cases despite their conflicts of interest.     

Communicating to the Courts and Beyond: Why Members of Congress Participate as Amici Curiae

Members of Congress engage in discretionary behaviors, such as making speeches and cosponsoring bills, which are generally motivated by either electoral needs or policy preferences. We examine a discretionary behavior that engages the judicial branch in the conversation: the participation of members of Congress as amici curiae before the Supreme Court. Amicus curiae briefs provide members of Congress with a direct avenue of communication with the judiciary, and this characteristic suggests that cosigning would be a method of creating good public policy. Using data from the 1980–97 terms of the Supreme Court, however, we find that members of Congress cosign onto amicus curiae briefs as a means of “taking stances,” akin to cosponsoring a bill. The action allows the member to speak indirectly to an audience beyond these governmental institutions. Evidence shows that ideological extremism and committee jurisdiction promote participation as amicus curiae.     

Presidential Influence on Police Practices: The U.S. President’s Indirect Impact on Fourth Amendment Case Outcome Through Supreme Court Appointments

Utilizing presidential influence theory as a conceptual framework, this study examines the extent to which U.S. presidents effect police practice case outcome through the Supreme Court justices they nominate. Through their confirmed nominees, presidents can have an enduring political impact long after they have left office. Results from a sample of 253 Fourth Amendment police practice cases from 1953–1997 demonstrate that presidents do have an indirect influence on police search and seizure practices. While presidents do not vote in Supreme Court cases, they still have an effect on case outcome because their appointees generally vote along similar ideological lines. Specific results, study limitations, and policy implications for law enforcement agencies are discussed.     

POLICY PREFERENCES OF JUSTICES AND PRESIDENTS

Focusing on the issue of civil rights, this study examines the relationship between policy preferences of presidents and the votes of the Supreme Court justices they appointed. Through content analysis of presidential statements, relatively systematic measures of civil rights policy views for five recent presidents were obtained and compared with the voting records on civil rights of justices they appointed to the Supreme Court. The findings suggest that although a correspondence exists between presidential preferences and judicial votes, presidents have been only moderately successful in appointing justices whose votes reflect presidential preferences.     

Lawyers,Justices, and Issue Salience: When and How Do Legal Arguments Affect the U.S. Supreme Court?

A good deal of scholarly evidence suggests that the decisionmaking of the U.S. Supreme Court is affected by legal argument. At the same time, it seems clear that in a great many cases the justices have enduring, strongly held views. In such cases, they should be impervious to the effects of advocacy. When are the justices apt to be influenced by the Court's legal community, and when will lawyers be less relevant? The answer, we think, has to do with the salience of the issue before the Court. We suspect that in nonsalient cases the justices have less‐intense preferences and therefore are open to the persuasion of lawyers. In salient cases, by contrast, the content of legal policy matters much more to the justices. As a result, they are less amenable to legal argument and adhere more strictly to their personal policy preferences. Our empirical tests support this orientation.     

<Emphasis Type="Bold">Originalism</Emphasis><Emphasis Type="Bold">, Pragmatic Conservatism,and Living Document Judicial Philosophies: Explaining Variation in U.S. Supreme Court Votes in Criminal Procedure Cases for the 1994–2014 Terms of Court</Emphasis>

Prior research on U.S. Supreme Court justice votes and case outcomes has examined a variety of hypotheses to explain variation in voting and case decisions in criminal procedure matters. Largely ignored by prior work, however, is the notion that the effects of the measures used to examine these prior hypotheses may vary for the justices based on the judicial philosophy espoused and followed by the justice. This article identifies three distinct overarching judicial philosophies of law interpretation that have guided the justices for much of the Rehnquist Court and the entirety of the Roberts Court: Originalism, Pragmatic Conservatism, and Living Document. It contextualizes the Information, Affected Groups, and Legal Issue hypotheses in a framework that considers their potential effects across Originalist, Pragmatic Conservative, and Living Document justices on the Court for the 1994 through 2014 terms. The study finds that enhanced activity by special interest organizations (the Affected Groups Hypothesis) in support of the non-government other party impacts vote direction among Pragmatic Conservative and Living Document justices but not for the Originalist justices. It also finds more case type (Legal Issue) effects for Originalist justices than for Pragmatic Conservative and Living Document justices in that for Originalist justices a vote for the government is less likely in cases that concern statutory meaning (relative to constitutional meaning). Implications are discussed.     

Psychology's influence on constitutional interpretation

When organized psychology files amicus briefs with the Supreme Court and other courts, it does so for a variety of reasons and seeks to advance a number of policy objectives. The thesis of this article is that pursuit of some of those objectives is improper and that their pursuit threatens to defeat other objectives. Psychology's expertise is not in constitutional analysis; it is in the study of human behavior. As a practical matter, to pretend to do the former is to weaken our effectiveness in describing the latter. In public interest cases, when acting as a true friend of the court, APA's obligation is to share with the court what empirical research and theory tell us about human behavior, and not to argue for any particular outcome of the case before the court.     

Qualifying the psychiatrist as a lay witness: a reaction to the American Psychiatric Association petition in Barefoot v. Estelle

Organized psychiatry has recently begun to define limits to expert testimony. The American Psychiatric Association filed an amicus brief in the case of Barefoot v. Estelle urging legal curtailment of psychiatric testimony as to future dangerousness and prohibition on Constitutional grounds of expert psychiatric testimony solely based on hypothetical data. The Supreme Court refused relief on both questions. Psychiatric testimony to ultimate questions at law is limited by the inherent contextual variables of psychiatric clinical and experimental knowledge and practice. A forensic science model for psychiatric participation with explicit psychiatrically defined limitations is proposed using competence to stand trial as an example.     

Birth Order,Preferences, and Norms on the U.S. Supreme Court

The members of the U.S. Supreme Court have different ideas about what constitutes good judicial policy as well as how best to achieve that policy. From where do these ideas originate? Evolutionary psychology suggests that an answer may lie in early life experiences in which siblings assume roles that affect an adult's likely acceptance of changes in the established order. According to this view, older siblings take on responsibilities that make them more conservative and rule‐bound, while younger ones adopt roles that promote liberalism and greater rebelliousness. Applying this theory to the Court, I show that these childhood roles manifest themselves in later life in the decisions of the justices. Birth order explains not only the justices’ policy preferences but also their acceptance of one important norm of judicial decisionmaking, specifically their willingness to exercise judicial review.     

The Use of Rhetorical Sources by the U.S. Supreme Court

This study considers whether U.S. Supreme Court justices use opinion content strategically, to enhance the legitimacy of case outcomes. This hypothesis is tested by examining the Court's use of rhetorical sources, which are references to esteemed figures and texts that corroborate the justices' views. The data are consistent with the position that justices use rhetorical sources strategically, citing them when the legitimacy of their actions is lowest, such as when they are overturning precedent, invalidating state or federal law, or issuing directives from a divided bench. The study also tests several other explanations for the use of these sources, such as legal considerations, the justices' ideologies, and efficiency concerns.     

Behavioral science and the juvenile death penalty

Behavioral science data included in an amicus brief has been introduced into a recent Supreme Court decision (Thompson v. Oklahoma) involving the juvenile death penalty. However, a close examination of the data fails to provide support for either the pro- or antijuvenile death penalty position.     

Has Legal Realism Damaged the Legitimacy of the U.S. Supreme Court?

Does understanding how U.S. Supreme Court justices actually decide cases undermine the institutional legitimacy of the nation's highest court? To the extent that ordinary people recognize that the justices are deciding legal disputes on the basis of their own ideological biases and preferences (legal realism and the attitudinal model), the belief that the justices merely “apply” the law (mechanical jurisprudence and the myth of legality) is difficult to sustain. Although it is easy to see how the legitimacy of the Supreme Court, the most unaccountable of all American political institutions, is nurtured by the view that judicial decisionmaking is discretionless and mechanical, the sources of institutional legitimacy under legal realism are less obvious. Here, we demonstrate, using a nationally representative sample, that the American people understand judicial decisionmaking in realistic terms, that they extend legitimacy to the Supreme Court, and they do so under the belief that judges exercise their discretion in a principled and sincere fashion. Belief in mechanical jurisprudence is therefore not a necessary underpinning of judicial legitimacy; belief in legal realism is not incompatible with legitimacy.