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Lee Epstein
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Lee Epsteing Ethan A.H. Shepley Distinguished University Professor
Untitled Page MAPPING OUT THE STRATEGIC TERRAIN: THE INFORMATIONAL ROLE OF AMICI CURIAE
Published in 1998. In Supreme Court Decision-Making, ed. Cornell W. Clayton and Howard Gillman. Chicago: University of Chicago Press.

Lee Epstein
Jack Knight

Without a doubt, most members of Congress (MCs) seek to reelected to their positions; indeed, some scholars suggest that this is their primary goal (Mayhew 1974).  If that is so, then we would expect MCs to take into account the preferences of their constituents when deciding whether or not, say, to vote for a bill.  But from where do legislators learn about the desires of the constituents?  The answer, according to many legislative specialists, is from interest groups.  On this account, lobbyists provide information to MCs about consequences of alternative courses of action (such as voting for or against a bill).  With this information in hand, MCs can then make rational choices, that is, choices designed to maximize their preference for reelection as opposed to electoral ouster.  This is one reason why reelection rates for MCs remain so high.  Or so the argument goes. 

In this chapter, we argue that organized interest- participating as amici curiae- play a role for justices similar to that lobbyists play for legislators: they provide information about the preferences of other actors, who are relevant to the ability of justices to attain their primary goal- to generate efficacious policy that is as close as possible to their ideal points.  In other words, just as information permits legislators to make rational decisions, so too does it enable justices to make choices to maximize their preferences.  Perhaps that is why Congress so rarely overturns Supreme Court decisions.

Since this argument follows from a more general account of Supreme Court decision-making- what we call a strategic account- we begin by providing a brief summary of it.  Within this discussion, we lay out our assumptions about the goals of justices.  This is a necessary step because we can hardly talk about organized interests as helping justices to maximize their preferences if we do not specify the nature of those preferences.  The discussion also helps to establish why it is that justices require information.  Next, we describe the sources from which justices can gather information (with particular emphasis on briefs amicus curiae) and consider the evidence bearing on our argument.  Finally we provide some directions for future research adopting strategic approached to study the role of organized interests in court. 

Click here for the chapter (.pdf).