On
January
24,
2022,
the
United
States
Supreme
Court
granted
cert
in
consolidated
cases reviewing
affirmative
action
programs
at
both
Harvard
and
North
Carolina
Universities
along
with
the
Court’s
precedent
upholding
affirmative
action
programs
from
the
2003
case Grutter
v.
Bollinger.
By
August
of
2022,
nearly
100
groups
and
individuals
filed
amicus
briefs
covering
a
range
of
matters
related
to
the
case
and
on
behalf
of
the
main
parties
in
the
case.
While
most
cases
do
not
incur
this
number
of
amicus
briefs,
this
number
has
been nearly
reached
or
exceeded
several
times
in
the
past
decade.
Most
cases
before
the
justices
now
include
multiple
amicus
filings.
While
50-plus
years
ago,
amicus
filings
were
more
an
aberration
rather
than
an
expectation,
the
terrain
has
shifted
dramatically.
Political
scientist
Paul
Collins
defined
the
purpose
of
amicus
filings
in
a 2018
article
in
the
Annual
Review
of
Law
and
Social
Science,
“Amicus
curiae
(“friend
of
the
court”)
briefs
are
a
powerful
tool
that
allow
interest
groups
and
other
entities
to
participate
in
litigation
when
they
are
not
a
direct
party
to
the
dispute.
Through
these
briefs,
amici
can
present
courts
with
new
or
alternative
legal
positions,
social
scientific
and
factual
information,
and
perspectives
regarding
the
policy
implications
of
their
decisions
(Collins
2008a).
This
is
typically
done
for
the
purpose
of
attempting
to
persuade
the
courts
to
endorse
a
particular
outcome
in
the
case
(Banner
2003,
Harris
2000).”
In
their
paper The
Amicus
Machine,
Allison
Orr
Larsen
and
Neal
Devins
explain
several
important
facets
related
to
this
exponential
growth
of
these
briefs.
They
describe:
“…the
modern
Supreme
Court
itself
embraces
the
work
of
the
amicus
machine.
The
Justices
seem
to
prefer
a
system
dominated
by
Supreme
Court
specialists
who
can
be
counted
on
for
excellent
advocacy.
They
look
to
these
briefs
both
for
legal
theories
and
factual
evidence,
and
they
cite
them
at
an
increasingly
high
rate.
The
Justices
also
seem
to
prefer
a
system
(fostered
by
these
briefs)
that
facilitates
the
declaration
of
broad
legal
rules
rather
than
resolving
narrow
disputes.
Supreme
Court
specialists
are
experts
in
identifying
ways
in
which
a
case
is
a
good
or
bad
vehicle
to
establish
broad
legal
principles
and,
as
such,
the
amicus
machine
helps
the
Court
identify
which
cases
to
hear
and
how
to
rule
on
those
cases.”
While
amicus
filers’
general
goal
is
persuading
the
justices
to
take
their
positions
into
account
in
their
decisions,
the
growth
in
amicus
filings
has
also
led
to
clear
differential
of
impact
between
briefs
where
the
justices
and
their
clerks
clearly
examine
certain
briefs
and
in
all
likelihood
either
quickly
skim
other
briefs
or
skip
reading
them
altogether.
Filing
entities
often
signal
the
importance
of
their
briefs
in
order
to
increase
their
chances
that
the
justices
pay
attention
to
their
positions.
Such
signals,
as
Larsen
and
Devins
describe,
often
involve
filings
by
notable
repeat
player
advocates
that
the
justices
recognize,
or
from
groups
already
known
to
the
justices
for
the
importance
of
their
positions.
The
clearest
indicator
that
the
justices
read
a
brief
and
acknowledged
the
positions
espoused
in
it,
whether
or
not
the
justices
actually
agree
with
the
arguments
in
the
brief,
is
through
direct
citations
to
the
brief
in
their
opinions.
Advocates
and
their
employers
place
value
on
such
citations,
often
using
them
as marketing
tools
showcasing
the
brief’s,
and
therefore
their
respective
employer’s
success.
This
article
looks
at
citations
to
these
briefs
over
the
past
two
Supreme
Court
terms.
Findings
The
citation
counts
in
this
article
are
based
on
each
unique
brief
cited
in
each
opinion.
This
means
that
it
does
not
count
duplicate
citations
to
the
same
brief
in
the
same
justice’s
opinion,
but
it
does
separately
count
citations
within
separate
opinions
within
the
same
overall
decision.
A
hypothetical
example
illustrating
this
is
that
Justices
X,
Y,
and
Z
cite
the
same
amicus
brief
on
behalf
of
the
United
States
in
separate
opinions
in
case
A.
Justice
X
cites
the
brief
four
times
in
the
majority
opinion,
Justice
Y
three
times
in
dissent,
and
Justice
Z
cites
the
brief
twice
in
a
concurrence.
The
citation
count
for
these
would
total
three.
Based
on
this
approach
there
were
more
citations
to
amicus
briefs
this
past
term
than
in
the
prior
term.
Both
terms
included
a
single
case
dominating
these
citations.
In
the
2022
term
it
was
the affirmative
action
decision,
while
in
the
past
term
it
was
in Grants
Pass as
showcased
below
(the
graph
shows
cases
with
at
least
two
such
citations):
Citation
counts
to
amicus
briefs
in
the
two
cases
described
above
both
include
more
than
four
times
the
number
of
citations
than
the
case
with
the
next
most
citations
in
their
respective
terms.
The
justices
do
not
cite
amicus
briefs
in
equal
proportions.
The
next
graph
shows
the
total
number
of
citations
per
justice
over
these
two
terms
and
then
broken
down
into
each
term
Justices
Gorsuch
and
Sotomayor
closely
parallel
each
other
in
citation
counts
and
far
exceed
the
number
of
citations
from
any
of
the
other
justices.
Their
142
combined
citations
over
the
past
two
terms
far
exceed
the
117
citations
combined
from
the
rest
of
the
justices
and
are
almost
six
times
as
many
as
from
the
four
justices
with
the
fewest
such
citations.
The
justices
do
not
cite
amicus
briefs
in
equal
numbers
across
all
opinion
types.
Below
is
a
breakdown
of
cites
from
these
two
terms
by
opinion
type
Although
dissents
are
discretionary,
these
still
appear
to
be
the
primary
opinion
type
for
amicus
filings
by
a
small
margin
over
majority
opinions.
One
possible
explanation
for
this
ratio
of
citations
in
dissents
to
other
opinion
types
may
be
that
justices
wish
to
show
that
their
views
which
do
not
accord
with
those
of
the
majorities,
are
not
held
by
the
justices
alone,
but
rather
are
shared
by
a
diverse
group
of
interested
parties.
These
citations
may
also
involve
statistics
or
factual
statements
that
support
the
dissents’
positions,
where
the
dissenting
justices
are
trying
to
show
both
the
truth
of
their
positions
and
to
bifurcate
their
assertions.
A
breakdown
of
citations
by
both
opinion
type
and
justice
is
quite
illuminating:
We
see
that
Justice
Sotomayor’s
citations
in
dissenting
opinions
far
exceed
those
from
any
of
the
other
justices
while
Justice
Gorsuch’s
citation
counts
in
majority
opinions
are
similarly
far
greater
than
those
from
other
justices.
Even
if
we
account
for
each
of
the
justice’s
number
of
authored
opinions
by
opinion
type,
these
citation
counts
do
not
equate
to
these
proportions.
Now
looking
at
cases
with
the
most
individual
citations,
at
least
six,
then
broken
down
by
individual
justice’s
citations
we
find:
As
shown
above,
the
most
citations
come
from
the
affirmative
action
cases
and
from Grants
Pass and,
as
expected,
across
the
board
from
Justices
Gorsuch
and
Sotomayor.
Other
high
citation
counts
include
from
Justice
Jackson’s
dissent
in
the
affirmative
action
cases,
Justice
Kavanaugh’s
dissent
in Purdue
Pharma,
and
Justice
Alito’s
majority
opinion
from
the
case Groff
v.
DeJoy.
One
other,
interesting
way
to
slice
these
data
is
by
the
justices’
relative
number
of
citations
to
the
most
prolific
amicus
filer,
the
United
States
government:
While
Justice
Gorsuch
only
has
a
moderate
number
of
citations
to
the
United
States’
briefs,
Justice
Sotomayor
cited
the
United
States
most
frequently
of
the
justices.
Sandwiched
in
between
citation
counts
from
Sotomayor
and
Gorsuch,
Justice
Thomas
cited
the
United
States
in
five
unique
case/opinions
and
Justice
Kagan
did
so
four
times.
As
the
United
States’
briefs
convey
the
positions
of
the
executive
branch
and
are
often
described
as
coming
from
the
“Tenth
Justice,”
the
Solicitor
General,
based
on
the
SG’s
relationship
of
trust
with
the
justices,
this
high
number
of
citations
from
the
justices
should
come
as
no
surprise.
This
article
shows
one
measure
of
amicus
brief
impact
on
decisions
from
the
past
two
terms.
Important
takeaways
include
where
the
briefs
are
cited
and
which
justices
cited
them.
The
justices
clearly
have
multiple,
differential
uses
for
these
briefs,
at
least
to
the
extent
that
they
cite
them
directly,
and
this
understanding
(as
well
as
which
justices
cite
them)
may
assist
with
the
attorneys’
strategies
of
targeting
certain
justices’
penchants
in
these
briefs
in
hope
of
making
specific
impacts.
It
also
showcases
where
this
high
level
of
filings
come
from,
as
the
justices
place
differential
importance
on
these
briefs
in
particular
cases.
Similarly,
astute
amicus
filers
are
aware
of
the
cases
where
these
briefs
will
likely
play
more
and
less
important
roles,
and
file
these
briefs
accordingly.
Adam
Feldman
runs
the
litigation
consulting
company
Optimized
Legal
Solutions
LLC.
For
more
information
write
Adam
at [email protected]. Find
him
on
Twitter: @AdamSFeldman.