Supreme Court Rule 37 instructs attorneys filing “friend-of-the-Court” briefs to avoid repeating arguments made by the parties themselves and refers to such briefs that do as “not favored.” This is not actually true in reality, at least according to a recent study by Paul Collins, Pamela Corley, and Jesse Hamner, The Influence of Amicus Curiae Briefs on U.S. Supreme Court Opinion Content. The three scholars analyzed majority opinions and amicus briefs from the 2002, 2003, and 2004 Terms, which they selected for being relatively recent Terms of the Court without any membership change. During that time frame, the Justices positively incorporated more language from amicus briefs that “repeat[ed] information contained in the opinions of the lower courts that initially handled the litigation, litigant briefs, and other amicus briefs” (especially the first two factors).
Although this finding might seem incongruent with the claims of practitioners, law clerks, and especially the Justices who have spoken on the matter and who largely condemn repetitious briefs, it is exactly what one would expect in light of psychological studies on repetition and persuasion. Research on these topics, the authors report, show that decision makers respond more positively to arguments presented to them multiple times, “since the repetition of those arguments makes them appear more valid, irrespective of the objective validity of the argument.”
This demonstration of the psychological influence of repetition, as well as other findings in the article, suggest the attention attorneys – and the clients hiring them – may want to pay to the non-legal elements at play on the bench.
The reputation of filers, at least as far as having material from a brief reproduced in the opinion is concerned, appears to be another influence on the Justices. Even controlling for the quality of the studied amicus briefs for cognitive clarity and use of plain language, the authors find the Justices from the 2002 through 2004 Terms positively incorporated “[twenty-four] percent more language from amicus briefs filed by high status amici” than other outside interest groups.
As a last example, this past September in an interview with Nina Tottenberg at Sixth and I in Washington, D.C., Justice Stephen Breyer gestured to demonstrate the several-feet-high stack of amicus briefs he had to review for the recent case Obergefell v. Hodges. That stack may not have accomplished much (although this case fell outside the parameters of their study). Amicus influence appears to be at a minimum for the most well known cases and for the cases with the most amici. The authors suggest this is because the Justices already have clearly formed ideas on such major subjects and need less help from outside sources in forming an opinion – both in their minds and on paper.
At least for the 2002 through the 2004 Terms, Justice Clarence Thomas borrowed most heavily from amicus briefs in writing his opinions, followed in descending order among the current players on the bench by Justices Ruth Bader Ginsburg, Antonin Scalia, Stephen Breyer, and Anthony Kennedy.