In the 2012 Term, the Supreme Court split five to four in highly contested Maryland v. King. Justice Anthony Kennedy wrote the majority opinion, but he didn’t thereby give victory to the conservative wing of the Court in an ideologically split decision. Justices Stephen Breyer and Antonin Scalia switched places, so to speak. Scalia wrote the decision in another ideologically mixed, five-to-four case that Term, Florida v. Jardines, joined by conservative Justice Clarence Thomas and liberal Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor.
In a recent study for the Criminal Justice Policy Review, Supreme Court Outcomes in Criminal Justice Cases (1994-2012 Terms): An Examination of Status Differential and Amici Curiae Effects, Kevin Buckler reviewed these two cases and 485 others from the 1994 through 2012 Terms. Buckler defines criminal justice for this study more broadly than “criminal procedure,” including cases involving civil rights, the First Amendment, due process, and privacy for which a criminal prosecution initiated the case and the Court found the statute authorizing that prosecution unconstitutional.
In the search for explanations for case outcomes other than ideology, much research into the field of criminal justice at all levels of the judicial process has focused on the role of status differentials between the government entity pursuing an adversarial action and the involved party. “All parties are not created equally” in the appellate process, Buckler claims, and he ranks (and his study later substantiates) status by federal government or agent, state government or agent, local government or agent, corporation, citizen, defendant, or inmate. Status differentials at the appellate level take on an additional element of “stigma,” Buckler claims, because the defendant carries the weight of having already suffered adverse decisions at earlier stages of the legal process. As a result, Buckler calls some elements of status difference “structurally established.”
Status difference is not a complete explanation, however, and Buckler further seeks to understand the influence of third-party agents on Supreme Court outcomes through the filing of “friend of the Court” briefs. He finds the presence of amicus briefs from the U.S. Solicitor General and the Criminal Justice Legal Foundation “significantly associated” with outcomes favoring the governmental position. He suggests this “may be the result of the quality of the legal arguments presented, selection processes undertaken by the organization to identify the cases where the organization’s influence may be most salient and powerful, or a combination of these two possibilities.”
Amicus briefs from states, the American Civil Liberties Union, and the National Association of Criminal Defense Lawyers do not seem to have this same effect, or at least Buckler finds “no evidence of independent association” between them and outcomes in criminal justice cases at the Court. Nevertheless, pro-individual arguments against the prosecuting governmental entity do have significant sway in the aggregate. That is, the greater the pro-defendant interest-group activity (irrespective of the specific organizations involved), the more likely the Court will issue a ruling against the governmental position. Buckler’s conclusions substantiate what he calls the Affected Groups Hypothesis, which proposes that appellate court judges will infer from the number of cosigners for a position a rough indication of the public opinion on the issue. This conclusion pointedly contrasts with ideas emphasizing the role of the information contained in a brief over and above the reputations or numbers of specific organizations – what Buckler calls the Information Hypothesis – which received no support in the data.
Buckler’s findings seem to correlate with another recent study on amicus briefs by Paul Collins, Pamela Corley, and Jesse Hamner (The Influence of Amicus Curiae Briefs on U.S. Supreme Court Opinion Content). This second study is both narrower – only including the Terms from 2002 to 2004 – and broader – looking at all cases, not just criminal justice ones, and it is more interested in language content than case outcomes. Both studies find a significant role for high-status third parties, although Buckler makes this determination for a limited number of organizations. Collins’s emphasis on repetition also seems to correspond roughly with Buckler’s dismissal of the idea that the primary role of an amicus brief is the presentation of new material before the Justices. The studies seem to differ on the role of multiple amicus filings, for, in contrast with Buckler, Collins finds that more briefs lessen their overall influence on the final opinion (of course, this could also be a result of the difference between looking at opinion content and outcomes; presumably briefs could influence decisions without lending language).
This Term has the makings of being very important for criminal justice, especially as regards the Eighth Amendment. We will have to wait to see what happens with the current cases on the merits docket, and time will tell whether Buckler’s findings stand up to their outcomes.