(image from Dover Teachers’ Union)
With 48 amicus curiae briefs filed at the merits phase and a total of 57 amicus briefs filed throughout the case, Friedrichs v. California Teachers Association (No. 14-915) has drawn much interest both from the public and from the policy community. It also provides the fodder I was looking for in this post – a recent case with a large sample of briefs.
The interests of amici vary from the Beckett Fund For Religious Liberty’s: “concern that if governments like California are permitted to mask the coercive effect of their actions on religious objectors merely by interposing non-governmental intermediaries, then many of the protections of the First Amendment will be neutered” to the Rutherford Institute’s interest regarding “whether public-sector employees are required affirmatively to opt out of fees for nonchargeable speech” because this has “implications for the rights of individuals regarding speech and affiliation and implicates serious privacy issues associated with an individual’s choice not to speak or affiliate with a particular organization or type of speech.”
The briefs filed in this case also present many sources of variation. They were submitted on behalf of a diverse group of scholars, academics, lawyers, and various interest groups. In terms of the brief lengths (after citations have been stripped), the shortest brief is the Beckett Fund’s Amicus Brief in Support of the Petitioners at 1302 words while the longest is Pacific Legal Foundation’s Amicus Brief in Support of Petitioners at 11,983 words.
As the focus of this post is the quality of these briefs, I use the same 80 point scale based on output from StyleWriter 4 that I used in past posts. The distribution of the briefs’ scores is captured in the figure below.
The briefs that interest me for this post are the briefs at the far right of this distribution scoring 65 or greater. Of this group of briefs only one was a party’s brief. This is Petitioner’s Brief on the merits filed by (a.k.a. the attorney or counsel of record) Michael Carvin from Jones Day (whose success is also documented in another post).
There were two briefs that scored the top score of 68. These are briefs from the National Women’s Law Center et al. in Support of Respondents filed by Matthew Helman from Jenner & Block and on behalf of Daniel DiSalvo (associate professor of political science at The City College of New York-CUNY and a senior fellow at the Manhattan Institute) filed by Thomas McCarthy from Consovoy McCarthy.
The remainder of the briefs in this group scored 66. These include amicus briefs:
- on behalf of Social Scientists filed by Joel Rogers from University of Wisconsin’s Law School,
- on behalf of School Districts filed by ex-US Solicitor General Seth Waxman of WilmerHale,
- on behalf of the Peace Officers Research Association of California, et al. filed by Pamela Karlan of Stanford Law School’s Supreme Court Litigation Clinic (in a forthcoming piece I found that Jeffrey Fisher from Stanford’s Supreme Court Litigation Clinic was the most successful attorney at achieving cert grants for the 2001 through the start of the 2015 Supreme Court Terms. They must be doing something right at Stanford),
- on behalf of Michigan and Eight Other States filed by Michigan’s Solicitor General Aaron Lindstrom,
- and on behalf of Montana’s Governor Steve Bullock filed by Deepak Gupta of Gutpa Wessler.
With so many filings in this case these are some of the briefs that stand out according to various facets of their writing such as readability, lack of passivity, etc. A related question and one that I’ve tried to answer in previous work is whether brief quality affects chances of success in the Supreme Court (by whatever success metric the party or amici measures success by). My main finding so far is that quality matters for merits briefs and that the likely mechanism is that high quality briefs are easier to read so that the Justices and clerks spend more time poring through them rather than briefs that are more difficult to follow.