logoWustlSm  
Lee Epstein
trans
Lee Epsteing Ethan A.H. Shepley Distinguished University Professor
Untitled Page

AMICUS CURIAE PARTICIPATION IN U.S. SUPREME COURT LITIGATION: AN APPRAISAL OF “HAKMAN’S FOLKLORE”
Published in 1981. In Law & Society Review 16 (4): 311-320

Karen O'Connor
Lee Epstein

The article's introduction is below; click here for the article (.pdf).

Introduction

In 1969 Nathan Hakman published a report of his investigation of the role of interest groups in Supreme Court litigation.  He found that interest groups filed amicus curiae briefs in only 18.6 percent of the 1,175 “noncommercial” cases decided by the Supreme Court between 1928 and 1966.  Participation as amicus curiae illustrates only one aspect of litigation activity, and at that one of the most limited, but Hakman took this as a reliable indicator that interest group activity in the court was less frequent than was commonly supposed.  Based on these findings, Hakman attacked the view that amicus participation was a form of political action.  Such a view, he argued, was mere “scholarly folklore” (Hakman, 1969:199).

Hakman’s observations can be understood best in the context of the research tradition which they rejected.  Arthur Bentley, writing in 1908, may have been the first social scientist to comment systematically on group influence on the judiciary (Bentley, 1908: 382-399), but it was David Truman’s The Governmental Process (1951) which offered the first thorough assessment of group lobbying in the judicial arena.  Truman offered no quantitative data, but showed how organized interests promoted the selection of “right”- thinking judges, promoted test cases, filed amicus briefs, and otherwise provided a key linkage between the legislative and judicial arenas.  His examples of litigation activity, given he time period he was describing, necessarily focused on cases which involved the clash of economic interests and generally ignored the litigious activities of noncommercial disadvantaged groups.  But his discussion of the inevitably political role of the courts made it clear that interests of all kinds would find it useful and even necessary to move into the judicial arena.  In particular he noted the tendency of groups, whatever interests they represented, to seek redress in the courts when their political strength elsewhere had diminished.

Clement Vose’s study of the NAACP and restrictive housing convenants was probably the first in-depth analysis of a single group’s litigation activities.  He was able to describe in minute detail the NAACP’s strategy to end housing discrimination.  He concluded that its effectiveness was the product of several factors, including the selection of appropriate test cases, the hiring and retention of skilled attorneys, and the longevity and stability of the organization.  Vose’s approach to the study of interest group litigation strategy later was applied to other groups by Manwaring (1962), Cortner (1968), and Wood (1968).  Hakman argued, however, that these group litigation activities were not representative of Supreme Court cases.  He found little evidence that organizations actually select test cases.  Most noncommercial litigation, he concluded, is highly technical and not of test-case quality (Hakman, 1969:230).

Hakman went further to contend that groups generally do not engage in judicial lobbying, and that they rarely have “strategies” for doing so.  Based on responses to two questionnaires sent to interest group leaders in 1955 and 1961, Hakman maintained that even “ ‘established’ or ‘permanent’ organizations do not play a significant role in influencing the scope or conduct of courtroom controversies” (1969: 245).

Whatever the validity of Hakman’s conclusions for the time period he studied, current research on interest group participation casts doubt on their current utility.  A legion of scholars has described the judicial lobbying efforts of interest groups.  The NAACP Legal Defense Fund’s efforts to prevent resumption of capital punishment (Meltsner, 1973), the continuing school desegregation and busing controversy (Kluger, 1976), the never ending issues of separation of church and state (Morgan, 1968; Sorauf, 1976), and the more recent controversies over gender discrimination (Cowan, 1976; O’Connor, 1980) and abortion (Epstein, 1981), all demonstrate continuing, extensive, and significant interest group activity before the courts.

Meltsner, for example, claimed that the Legal Defense Fund’s “cunning staff,” of whom he was one, was the key to victory in the death penalty case, Furman v. Georgia (1972).  Belton’s study of employment discrimination cases (1978) suggested that control of the litigation, though difficult to achieve, was crucial to interest group success in the courts.  Sorauf (1976) found that most of the church-state litigation he studied was controlled by two opposing coalitions of interest groups.  Cooperation among organizations in the “separationist” coalition was an important factor in the Supreme Court’s acceptance of their position. 

O’Connor’s Women’s Organizations’ Use of the Courts represents the most recent attempt to examine particular litigation strategies (1980: 16).  She found a number of factors contributing to court success.  The importance of each factor, however, varied with particular litigation strategies.  O’Connor classified the strategies of women’s rights organizations according to whether they were oriented toward court victories, publicity or involvement as amicus curiae.  Contrary to Hakman’s assumptions, she found that women’s organizations had participated in the vast majority of sex-discrimination claims brought to the Court and that the kind of involvement by each group was based on its adoption of a particular strategy (1980: 16).  Organizations submitted amicus curiae briefs for a variety of reasons, but chief among them was a group’s inability to fund major litigation from the trial court stage.  Through interviews with most of the case sponsors, as well as with lawyers who submitted the amicus curiae briefs, she found that no women’s rights organizations in agreement with Hakman’s conclusion that there were but “few instances… in which attorneys considered the amicus procedure to be an important part of their litigation strategy” (Hakmen, 1969: 237).

The amicus activity of these women’s rights organizations reflected Samuel Krislov’s observation that “the amicus is no longer a neutral amorphous embodiment of justice, but an active participant in the interest group struggle” (Krislov, 1963: 703).  According to Krislov, the Court recognizes this emergent role and often treats the amicus “as a potential litigant in future cases, as an ally of one of the parties, or as the representative of an interest not otherwise represented” (Krislov, 1963: 704).  There is other evidence that amicus participation is an important facet of Supreme Court litigation and an effective way for some groups to lobby the courts.  Steven Puro, in a longitudinal study of amicus activity in the period 1920 through 1966, examined several organizations’ participation motives for involvement in Supreme Court cases.  He found that “underdog groups and those who espouse curiae… [and] that their positions were more likely to prevail there” (Puro, 1971: 254-255.  Even though Puro found rated of overall amicus activity identical to those founded by Hakman, who observed noncommercial cases alone, he did identify certain groups that regularly participated and, perhaps more importantly, believed their participation to be important.

Virtually all recent research, therefore, has found evidence of a significant systematic organizational role in Supreme Court litigation.  It is time again to ask, like Hakman, whether these well-documented reports are merely idiosyncratic and thus not representative of Supreme Court litigation as a whole, or whether they are merely the most visible instances of a dynamic now deeply embedded in the litigation process.