SCOTUSblog: Commentary and Analysis Archives

Commentary and Analysis

Thursday, September 27, 2007

Cert.-stage Amicus Briefs: Who Files Them and To What Effect?

12:31 PM | Adam Chandler | Comments (3)

Even before the Justices have decided whether to hear a case, the U.S. Chamber of Commerce is willing to step in and state its interest—more willing, in fact, than any other organization.

A review of certiorari-stage amicus curiae briefs (i.e., amicus briefs filed at the petition stage, before the Justices grant cert.) filed between May 19, 2004 and August 15, 2007 shows that the Chamber of Commerce filed 55 such briefs, about 17 per year. Over the three-and-a-quarter years studied, 986 parties filed cert.-stage amicus briefs, averaging 1.666 briefs per party. Of those 986 amici, 259 filed 2 or more, and 118 filed 3 or more. Not every party was included in the count, as we were most interested in the impact of private groups and advocacy organizations pushing cert. petitions; those excluded from the count are listed at the bottom of this post.

The top sixteen parties each filed 8 or more briefs, and a list of those groups, along with the success rates of the cases in which they filed (up to Tuesday's orders list), is here. The success rate is calculated as a percentage of the party-supported petitions that were either granted or denied. (Note that only amicus briefs in support of a petition are considered here; the Washington Legal Foundation filed as an amicus in opposition to the petition in Padilla v. Hanft (05-533) and was not counted in that instance.) Petitions supported by these top sixteen groups included many of the Court's most high-profile cases over the last few years, such as US v. Booker, MGM v. Grokster, PICS v. Seattle Schools, and Rumsfeld v. FAIR.

Notably, the list of top amici is dominated by pro-business and anti-regulatory groups—such groups hold over half the slots in the top sixteen. The prevalence of these groups may result from their having an enhanced financial ability to pay for many cert.-stage briefs as compared to other groups; the businesses and industries they comprise and represent may also be more eager to jump in at the petition stage when their bottom lines are at stake (as opposed to an ideological group); and it's possible, too, that these groups want to get as many cases as they can before a Supreme Court that is being increasingly viewed as business-friendly (e.g., see here). As a corollary, the absence of liberal or left-leaning groups is striking (with the National Association of Criminal Defense Lawyers as a narrowly-focused exception). The American Civil Liberties Union, for instance, tallied just two cert.-stage amicus briefs during this time.

A full quarter of the sweet sixteen are regionally-named legal foundations. Ranking third, fourth, seventh, and eighth overall in numbers of cert.-stage amicus briefs filed, the Washington Legal Foundation filed 26 briefs, the Pacific Legal Foundation filed 25, the New England Legal Foundation filed 11, and the Mountain States Legal Foundation filed 10. Their success rates were relatively high, ranging from about 18% (New England) to 39% (Washington). The Washington Legal Foundation, in fact, edged out the National Association of Home Builders (36%) to have the highest grant percentage of the top sixteen.

The only two groups in the top sixteen to be completely shut out were the Reporters Committee for Freedom of the Press (9 briefs in cases denied cert.) and the Society of Professional Journalists (8 briefs). Additionally, the Associated Press filed seven cert.-stage amicus briefs in cases that were all denied. These three groups, along with many other media organizations, often file amicus briefs together, so these are not 24 distinct denials, but rather just nine. Even so, since May 2004, these media groups hold the distinction of putting the most effort into pushing petitions while having no success.

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Tuesday, September 11, 2007

Life Tenure, Term Limits, and Supreme Court Justices

11:18 AM | David Stras | Comments (7)

Linda Greenhouse wrote a provocative article on term limits for Supreme Court Justices yesterday for the New York Times, highlighting the arguments of several important scholars on the issue, see here. Her article has prompted lengthy posts on the issue on both the Volokh Conspiracy, see here, and Concurring Opinions, see here. Among the leaders of the movement for an end to life tenure for Supreme Court Justices are Steven Calabresi and Jim Lindgren (both of the Northwestern University School of Law) and Roger Cramton (Cornell University Law School) and Paul Carrington (Duke University Law School). The proposals range from a mandatory retirement age (David Garrow) to nonrenewable eighteen-year terms, though scholars disagree whether the latter can be achieved by statute (Carrington and Cramton) or must be done through a constitutional amendment (Calabresi and Lindgren). To be frank, the call for an end to life tenure has garnered support from academics of all political persuasions, from a co-founder of the Federalist Society to leading liberal academics.

Key to nearly every argument to end life tenure is the empirical claim that Justices are serving longer than ever before and that the nature of life tenure has accordingly changed and for the worse. Nearly every article on the subject, including those of scholars and leading Supreme Court reporters, reports that the average tenure over history is 15 years for Supreme Court Justices and an astonishing 26.1 years for the most recent period, 1971-2006. Calabresi and Lindgren emphasize this claim in both their contribution to an edited volume entitled "Reforming the Court: Term Limits for Supreme Court Justices" and in their Harvard Journal of Law and Public Policy article, see here, which is discussed at some length in the Greenhouse piece. The problem with the claim, however, is that while tenure for Supreme Court Justices is indeed increasing as an empirical matter, it is not doing so at nearly as rapid a rate as Calabresi and Lindgren claim nor has it reached unprecedented levels.

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Thursday, September 06, 2007

Round-Up: More on the D.C. Guns Case, 9th Circuit

03:51 PM | Adam Chandler | Comments (0)

The District of Columbia’s appeal on Tuesday of the D.C. Circuit’s gun control decision remains very much in the news.
(Click here for more details on the petition and links to relevant documents.)

From the front page of yesterday's Washington Post, Bob Barnes and David Nakamura’s analysis of the city’s petition is here. It notes that while most petitions attempt to persuade the Justices to take the case, the city’s petition “serves as more of a preview of its defense of the law.” Here is today’s Reuters report from James Vicini, noting the “far-reaching legal and political importance” of the case.

Yesterday’s Washington Post editorial on the Second Amendment can be found here, and this is a Washington Times editorial arguing that the D.C. mayor’s “main problem is his argument.”

The Chicago Tribune's James Oliphant writes here about the impact the case could have on Chicago’s handgun ban. He points out that this case is “a rare instance when both sides in a dispute hope an appeal goes forward.” (Oliphant also has a report here on the relationship between Rudy Giuliani's presidential campaign and the Federalist Society, highlighting in particular Ted Olson, the former Bush Solicitor General.)

Michael Dorf has these thoughts on D.C.’s petition. He gives his predictions on how the case will fare at the cert. and merits stages, concluding that the ultimate decision “will instantly become an issue in the Presidential election, regardless of how the case is decided.”

Not related to the guns appeal, David Postman, chief political reporter at the Seattle Times, adds his thoughts to the ongoing debate over the Ninth Circuit’s reversal rate at the Supreme Court. In the piece, law professor Vik Amar suggests that “part of the problem may be with the impression of the Ninth Cricuit among students in Ivy League law schools.”

Tuesday, September 04, 2007

Round-Up: The D.C. Guns Appeal, Twombly Analysis

03:32 PM | Adam Chandler | Comments (0)

The District of Columbia filed its petition to the Supreme Court today for review of the D.C. Circuit’s decision that its gun control law violated the Second Amendment. For Lyle’s coverage and analysis of the petition, along with links to the relevant documents, click here.

D.C. mayor Adrian Fenty and attorney general Linda Singer had this column, “Fighting for Our Handgun Ban,” in today’s Washington Post. They write that the Circuit Court’s decision “threatens public safety and is wrong on the law…[s]o we will fight.” Also in the Washington Post is Bob Barnes and David Nakamura’s report on today’s filing, here.

Tony Mauro has a post on the case at the Legal Times blog (the BLT), which reports that Alan Morrison will be arguing the case for the city, should the Justices decide to hear it. Morrison has previously argued 16 cases at the Court while working for the Public Citizen Litigation Group. The Associated Press story on the appeal is available here, via the Wall Street Journal Online.

Also, not related to District of Columbia v. Heller, Gregory P. Joseph (bio here) has prepared this article, “Supreme Court Rewrites Pleading Rules,” which analyzes the landmark case Bell Atlantic Corp. v. Twombly, decided in May 2007.

Wednesday, August 01, 2007

Split the 9th? No, Says Former Circuit Judge

02:26 PM | Ben Winograd | Comments (1)

This post was written by Judge William A. Norris (bio here), senior counsel in Akin Gump's Los Angeles office and member of the U.S. Court of Appeals for the Ninth Circuit from 1980 to 1997. To read a previous post regarding the proposal mentioned below, click here.

In a recent Los Angeles Times op-ed piece (link here), Vanderbilt law professor Brian Fitzpatrick, in arguing that the Ninth Circuit should be split into two or more circuits, attempts to link the Ninth Circuit's size to its Supreme Court reversals. As an example of a case decided by "extreme" Ninth Circuit judges, he cites the holding that the First Amendment is violated by the inclusion of the words "under God" in a public school recital of the Pledge of Allegiance. "Not surprisingly," Fitzpatrick says, the case was unanimously reversed by the Supreme Court.

What Professor Fitzpatrick did not say was that the Supreme Court's reversal had nothing to do with the merits of the Ninth Circuit's First Amendment analysis. The Supreme Court dismissed the case, not on First Amendment grounds, but solely on the ground that a father who did not have custody of his elementary school child had no standing to bring the case in the first place. Nor does he tell us that the "bizarre" Ninth Circuit opinion was written by Judge Alfred T. Goodwin, a former Oregon Supreme Court justice who was appointed to the Ninth Circuit by President Nixon. In his scholarly opinion, Judge Goodwin meticulously reasoned that the outcome of the case was controlled by Supreme Court precedent. As everyone who knows anything about Judge Goodwin knows, it is laughable to label him an "extreme judge."

Confirmation Hearings and the Influence on the Public (More on the Gibson and Caldeira Paper)

11:31 AM | David Stras | Comments (3)

Last week, I briefly blogged in the academic round-up about Gibson and Caldeira's outstanding paper entitled "Supreme Court Nominations, Legitimacy Theory, and the American Public: A Dynamic Test of the Theory of Positivity Bias," see here. The paper can be downloaded here. To recap, Gibson and Caldeira use a three-wave national survey of Americans to determine their views on the Supreme Court before the Alito confirmation hearings (time 1), during the hearings (time 2), and then after the hearings (time 3). In the study, Gibson and Caldeira continue the interview process with the same set of respondents during each of the different time periods. Obviously, they do not have 100% response rates at the later dates, but they determine statistically that the respondents at time 2 and time 3 are representative of the whole sample.

Now to the interesting part. In an earlier paper, Gibson, Caldeira, and Spence determined that the Supreme Court may have actually enhanced its institutional legitimacy after deciding Bush v. Gore. An interesting result, to be sure, but two of those authors now extend their research to examine the effects of confirmation hearings and primarily interest group advertisements on the the public's views on the legitimacy of the Court. As I stated last week, the most interesting finding is that viewing advertisements during the Alito confirmation hearings negatively impacted the public's views about the Supreme Court, and partisanship and/or support or opposition to Alito had no impact on public perception. In other words, support or opposition to Judge Alito did not impact people's views of the Supreme Court. In addition, according to the authors, "[a]mong the best predictors of support for the Court are general political efficacy and lack of exposure to ads during the Alito dispute. Effects are also seen of democratic values (support for a multiparty system and political tolerance), and level of education." While exposure to ads (both positive and negative) independently influenced public perception at time 3, paying attention to the confirmation hearings positively influenced public perception of the Court, though the latter variable had a marginal and insignificant effect according to the authors. Indeed, the ads had a corrosive effect on public opinion about the Court no matter how much an individual paid attention to the hearings.

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Tuesday, July 31, 2007

Academic Round-Up

03:40 PM | David Stras | Comments (89)

This week, I am back to posting primarily legal scholarship about the Supreme Court and the cases decided this past Term. As I think I have noted before, I sometimes post papers with which I disagree because I think they will be of interest to our readership. I rarely note disagreement in the academic round-up (often because of space limitations and the format), but do note such disagreement in longer posts that I write about individual pieces or cases.

Michael Dorf (Columbia Law School) has a new essay posted on the Harvard Law and Policy website, see here, which asks the following question: "Does Federal Executive Branch Experience Explain Why Some Republican Justices 'Evolve' and Others Don't?" The piece is quite short, but enlightening. As Dorf points out, all of the Justices appointed by Republicans without executive branch experience in recent years have turned out to be more liberal than those with such experience. In the former category are Justices Blackmun, Powell, Stevens, O'Connor, Kennedy and Souter. In the latter category are Chief Justices Burger, Rehnquist, and Roberts, as well as Justices Scalia, Thomas and Alito. I wonder whether the hypothesis holds true for the circuit and district courts as well? My hypothesis is that it would not, but it is an area that warrants further empirical examination.

Virginia Law Review's In Brief has posted a new case comment by Justin Weinstein-Tull (Yale Law School student) that examines the Court's recent decision in Gonzales v. Carhart, see here. Although Weinstein-Tull laments the Court's result in Gonzales, he notes that in potentially expanding the scope of Congressional power, the Court's result "is promising for future civil rights legislation."

Scott Baker (University of North Carolina Law School) has posted a new article on SSRN entitled "Should We Pay Federal Circuit Judges More?," see here. As Baker notes, Chief Justice Roberts has stated that the most difficult issue facing the federal judiciary is low judicial salaries. The author finds that low judicial salaries do not impact votes in controversial cases, the speed of case disposition, or citation practices to outside circuit authority. The article does find, however, that lower judicial salaries do lead to slightly fewer dissents and slightly stronger opinions, as measured by out of circuit citations. The author essentially concludes that judicial pay is largely irrelevant to the functioning of the circuit courts. I query whether the same would be true for Supreme Court Justices?

After Seattle/Louisville: The Ball Is In Our Court

09:29 AM | Jason Harrow | Comments (14)

The following commentary is by Goodwin Liu, a law professor at UC Berkeley specializing in constitutional law, education policy, and the Supreme Court.

As the dust settles from the Supreme Court's decision limiting the use of race in school assignment, one thing is clear: the legacy of Brown v. Board of Education as a symbol of America's commitment to racial integration hangs by a thread. Were it not for Justice Kennedy's controlling opinion, which said it is "profoundly mistaken" to suggest that we "must accept the status quo of racial isolation in schools," the Court would have all but extinguished the promise and original meaning of Brown.

For supporters of civil rights, the Court's decision is a disappointment. But it should not be a surprise-and not merely because of the conservative make-up of the current Court. Throughout its history, the Court has often failed to advance civil rights, while ironically the political branches of the federal government, provoked by the Court's failures, have delivered many of our most significant civil rights gains. In this historical pattern lies an important lesson for the future of school integration.

The pattern goes all the way back to Dred Scott, the infamous 1856 case declaring that black people could not be citizens of the nation or any state. After the Civil War, Congress crafted the Fourteenth Amendment to undo the Court's decision and, as part of that amendment, assigned Congress the authority to enforce the new principles of liberty and equal citizenship.

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Tuesday, July 24, 2007

Academic Round-Up

12:42 PM | David Stras | Comments (0)

As promised, I have found some additional articles that should be of interest to some of our readers. This week the scholarship is a little heavy on the quantitative side, with a particular emphasis on some interesting work being done by political scientists.

James L. Gibson (Washington University Department of Political Science) and Gregory A. Caldeira (Ohio State University Department of Political Science and Law School) have posted "Supreme Court Nominations, Legitimacy Theory, and the American Public: A Dynamic Test of the Theory of Positivity Bias" on SSRN, see here. Using a three-wave national survey, Caldeira and Gibson make some absolutely fascinating discoveries about the views of Americans about the Supreme Court. There is a lot of interesting stuff in this paper, and I may try to blog more extensively about this paper down the line, but a key finding is that being exposed to advertisements during Alito's confirmation process seemed to undermine support for the Court. In contrast, paying attention to the confirmation hearings actually increased support for the Court, though the findings on this variable were marginal and insignificant according to the authors. This area is a keen interest of mine as I am working on a paper for Texas Law Review analyzing the nomination and confirmation process, but more on that later. As I said, this is a really interesting paper and Caldeira and Gibson do a fine job of making their analysis accessible to people without a quantitative background.

Christopher Zorn (University of South Carolina Department of Political Science), who has also written about the influence of Supreme Court law clerks, see here, has posted a co-authored paper with Jennifer Barnes Bowie (University of South Carolina Department of Political Science) on the issue of "hierarchy effects" on judicial decision making, see here. The hypothesis they test is whether the influence of judicial policy preferences on judicial decision making increase as one moves higher up the judicial hierarchy (i.e., from the Court of Appeals to the Supreme Court). The results are interesting but unsurprising: "as one moves up the institutional pyramid, judges' policy preferences exert an increasingly important influence on their decision making." This is a nice, short paper, but is perhaps a bit less accessible to non-quantitative folks than the Caldeira and Gibson paper.

Monday, July 23, 2007

The Republican (Not So) Short List

04:17 PM | Tom Goldstein | Comments (32)

Following up on my two posts (here and here) about potential Democratic nominees, here is my list of the thirty leading candidates for a Republican President (and here it is as a sortable Excel file). As with the Democratic appointments, I had the benefit of considerable research help, particularly from Akin summer associate Stanley Woodward. I also got advice from several outside sources who are much more plugged in to Republican legal circles. I’m very grateful.

I tried to assemble a diverse group, both demographically and in experience. There are six African Americans, five Hispanics, and one Arab American; eleven are women. Most are judges, but one is a sitting Governor; three are sitting or former Senators; and one is a State Attorney General. (I would have included Charlie Crist as another Governor, but I can’t imagine Republicans want to risk losing that office to a Democrat.)

I believe that a Republican President, like a Democrat, will feel pressure to name a woman to the Supreme Court and will see significant electoral value in naming the first Hispanic.

I expect that a Republican President would have the opportunity to name only one Justice in a first Term. Justice Stevens will be 92 at the time of the 2012 election – which would make him the oldest Justice in history (Holmes retired at age 90) – so that statistically the odds are that he would leave the Court by then. The appointment of Stevens’ successor would obviously give a Republican President – particularly a solid conservative – a remarkable opportunity to shape the Court.

Justices Scalia and Kennedy will be (respectively) 76 and 75 at the time of that election. Both no doubt would prefer to have their successors named by a Republican. But absent a very strong indication that the President’s reelection chances are doomed in 2012, I think both are likely to stay (as did William Rehnquist in 2004). Justice Scalia, in particular, will have (in this scenario) a solid working majority for the first time in his career.

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