Do the Justices and their clerks do their homework by reading and analyzing amicus briefs prior to oral arguments? In preparation for a larger project, I thought it would be interesting to probe this question (this also seems timely given Adam Liptak’s column in the New York Times on a recent study examining amicus briefs). This chronological point in the case gives a different perspective on the role of amicus curiae than the Justices’ opinions because it focuses on how the Justices and their clerks allocate their time and resources in the pre-vote stages of cases. On one hand there may be little motivation to read beyond the parties’ briefs at this point since there is time to study amicus briefs after oral arguments as well, and the amicus briefs do not alter the parties’ positions. On the other hand amicus briefs provide the Justices and clerks with a potentially broader view of the implications of the case and of the people that may be affected by the decision.
In this post I look specifically at the Justices’ references to amicus briefs during oral arguments for the 2005-2015 Supreme Court Terms (through February 2016 oral arguments). I only look at references to briefs by amici that are not participating in oral arguments. This obviously does not necessarily convey whether the Justices or their clerks reviewed the amicus briefs or not, only whether they prepared questions for oral arguments regarding the briefs. In this sense it is likely under-inclusive of the actual work performed, yet it still is some of the best specific evidence we have of whether the Justices and their clerks reviewed any, all, or none of the amicus briefs in a case prior to oral arguments. To reiterate, this is merely observational data and places no weight on the value of reviewing amicus briefs earlier rather than later in the case. There very well may be benefit to both approaches.
The first figure presents, by Justice, the total number of cases where the Justice referenced at least one amicus brief during oral arguments (the actual numbers that make up all of the figures can be found at the bottom of the post).
There were a total of 96 cases where at least one amicus brief was mentioned in oral arguments during this period. Two initially striking aspects of this chart are 1) the democrat appointees on the Court (and Justice Stevens who although was a Republican appointee tended to vote alongside the liberals on the Court) refer to amicus briefs far more often than the conservatives on the Court and 2) Justice Sotomayor refers to an amicus brief in more than twice as many cases as the next Justice in the chart (Justice Sotomayor referred to an amicus brief in 33 oral arguments while Justices Alito and Kagan come next with references to amicus briefs in 14 oral arguments each).
I then examined the type of references breaking them down into three categories – references to specific briefs which the Justices name (e.g. “the brief for the United States mentioned”), references to specific briefs that the Justices do not name (e.g. “an amicus filed in the case presented evidence that hoverboards may explode”), and general references (e.g. “several amici described the dangers of drug use”). The next figure shows each Justice’s breakdown of these three types of references.
Here we see that Justice Sotomayor almost evenly splits between specific named and specific unnamed brief references while making almost half of her references to the amici filings generally. At the other end of the spectrum Justice Roberts makes only specific references (two to unnamed briefs and four to named briefs). Justice Kennedy has a different combination with primarily general references and only one specific named and one specific unnamed brief reference. Suffice it to say there is substantial variation in this practice across the Justices.
The last figure shows the total number of references to amicus briefs by each Justice in all of the oral arguments combined.
More than one-third of the references come from Justice Sotomayor (who made 45 references to amicus briefs). Next comes Justice Alito with 19 references. The rest of the Justices range from six to fourteen references apiece.
These figures reveal that the Justices may and likely do place differing weights on the value of amicus briefs prior to oral arguments as well as differing values on bringing up issues raised in amicus briefs during oral arguments. In a future post I am thinking about examining an interesting and related topic: the types of cases where amicus briefs are raised in oral arguments and the specific cases where more than one Justice brings up one or multiple amicus briefs during oral arguments.