Participation as amicus curiae has long been an important tactic of organized interests in litigation before the U.S. Supreme Court. We analyze amicus curiae briefs filed before the decision on certiorari and assess their impact on the Court's selection of a plenary docket. We hypothesize that one or more briefs advocating or opposing certiorari increase the likelihood of its being granted. We test this hypothesis using data from the United States Reports and Briefs and Records of the United States Supreme Court for the 1982 term. The statistical analysis demonstrates that the presence of amicus curiae briefs filed prior to the decision on certiorari significantly and positively increases the chances of the justices' binding of a case over for full treatment—even after we take into account the full array of variables other scholars have hypothesized or shown to be substantial influences on the decision to grant or deny.

https://www.jstor.org/stable/pdfplus/1961752.pdf

Organized Interests and Agenda Setting in the U.S. Supreme Court

Many factors are important when it comes to conducting high quality elite interviews. As my colleagues have noted in their presentations in San Francisco and in their essays in this issue, gaining valid and reliable data from elite interviews demands that researchers be well prepared, construct sound questions, establish a rapport with respondents, know how to write up their notes, and code responses accurately and consistently. Improving these skills will certainly reduce the amount of measurement error contained in interview data. Unfortunately, none of these skills matter if you do not get the interview. In other words, everything that my colleagues have talked about depends on getting in the door, getting access to your subject. A well-prepared personable researcher who would be able to control an open-ended and wide-ranging interview, while establishing a strong informal rapport with an elite respondent will never get to demonstrate his or her interviewing skills—or ability to decrease measurement error—if the meeting never takes place. Furthermore and fundamentally, systematic error will also be introduced if researchers only get access to certain types of respondents.

Getting in the Door: Sampling and Completing Elite Interviews

political attitudes. Jurisprudential regimes identify relevant case factors and/or set the level of scrutiny or balancing the justices will use. These jurisprudential regimes have the potential to make a significant difference in the decisions of the justices. We identify a candidate jurisprudential regime, content-neutrality, which appears to govern the general area of free expression law. The Court applies the strictest standard of review to regulations of expression that target the content or viewpoint of expression. Relying on a series of statistical tests using logistic regression, we find that the justices take seriously this jurisprudential regime. oes law influence the justices of the U.S. Supreme Court as they decide cases? Some leading scholars of the Supreme Court assert that law makes little difference. According to the most extreme version of this position, justices largely follow their personal ideological preferences-a view that the Supreme Court itself did much to enhance in Bush v. Gore (2000). If this is true, then the Supreme Court differs from a small legislative body only in the selection and tenure of its members, its technical rules of procedure, and its inability, at least formally, to initiate issues to consider. Whether or not courts generally, and the Supreme Court specifically, differ from legislative bodies has major implications for how we think about the role of courts and analyze their processes and outputs. We contend that courts, including the Supreme Court, are different, and that part of this difference is the role of law in decision making. In this article, we describe and test a new approach to incorporating law into statistical models of Supreme Court decision making. At the same time, we do not reject the importance, or even the dominance, of attitudinal influences on the Court's decisions. However, we argue that one must move beyond the images of the role of law as a mechanistic, autonomous force to arrive at a legal model that is relevant at the Supreme Court level. Segal and Spaeth (1993, 1994; Spaeth and Segal 1999), the leading proponents of the attitudinal model of Supreme Court decision making, argue that justices of the Court are free to decide cases solely in line with their policy (attitudinal) preferences and almost always do so decide. According to this interpretation the justices' freedom to pursue their own policy goals is due to their specific institutional situation: They possess life tenure, sit at the pinnacle of the judicial hierarchy, seldom have ambition for higher office, choose which cases they will decide, and have little fear of being overturned by the elected branches of government, particularly in constitutional interpretation cases (Spaeth and Segal 1999). We do not dispute that the Supreme Court's institutional setting frees justices from the kinds of constraints that are faced by lower court judges, elected officeholders, or appointees serving either fixed terms of office or at the pleasure of some other officeholder. However, freedom from review or electoral accountability does not prevent the justices themselves from erecting other constraints that shape

http://epstein.wustl.edu/research/courses.judpol.Richards.pdf

Jurisprudential Regimes in Supreme Court Decision Making

W T He examine how the Supreme Court uses signals and indices from lower courts to determine which cases to review. In our game theoretic model, a higher court cues from publicly observable case facts, the known preferences of a lower court, and its decision. The lower court attempts to enforce its own preferences, exploiting ambiguity in cases'fact patterns. In equilibrium, a conservative higher court declines to review conservative decisions from lower courts regardless of the facts of the case or the relative ideology of the judges. But a conservative higher court probabilistically reviews liberal decisions, with the "audit rate" tied to observable facts and the ideology of the lower court judge. We derive comparative static results and test them with a random sample of search-and-seizure cases appealed to the Burger Court between 1972 and 1986. The evidence broadly supports the model. H ierarchical control of organizations is problematic throughout the realm of politics. Congress and presidents attempt to control agencies, upper levels of bureaucracies attempt to control lower levels, and higher courts strive to control lower courts. With incomplete information about their subordinates' decisions and knowledge, superiors in rule-based hierarchies often employ some form of auditing. In this article we study how the Supreme Court uses signals and indices from lower courts to pluck a relative handful of cases from a plethora of potential candidates for review. Our point of departure is the role of review in enforcing the doctrinal preferences of the Supreme Court within the judicial hierarchy. We begin by presenting a game-theoretic model of

/pdf/strategic-auditing-in-a-political-hierarchy-an-informational-4sn9wqs6dp.pdf

Strategic Auditing in a Political Hierarchy: An Informational Model of the Supreme Court's Certiorari Decisions

Conventional explanations of the solicitor general’s influence on the Supreme Court emphasize his expertise or experience. We articulate and test a more political account based on insights from signaling theory. We argue justices will be more receptive to signals from the solicitor general (S.G.) when either the justice and S.G. are ideologically proximate or the S.G.’s signal is contrary to his ideological predisposition. We test our account over the period from 1953 to 2002 using a newly developed interinstitutional measure of ideology that places executive and judicial actors on the same spatial scale. Our results highlight the political nature of the S.G.’s influence, challenging the received wisdom about the S.G.’s impact on the Supreme Court.

/pdf/signals-from-the-tenth-justice-the-political-role-of-the-4c0fhj0khu.pdf

Signals from the Tenth Justice: The Political Role of the Solicitor General in Supreme Court Decision Making

Jurisdiction and procedure the internal process special situations indices and signals bargaining, negotiation and accommodation strategy certworthiness a decision model. Appendix: an extended discussion of jurisdiction.

Deciding to Decide: Agenda Setting in the United States Supreme Court

/pdf/the-political-battle-for-the-constitution-4rstt8fx74.pdf

The Political Battle for the Constitution

Discusses the workload crisis of the United States Supreme Court and argues t the role of the Court should be as manager of the national lawmaking process

Redefining the Supreme Court's Role: A Theory of Managing the Federal Judicial Process

Unlike thirty years ago, human rights issues are now routinely raised in Australian constitutional cases. In this article, the authors examine the role of the amicus curiae in the United States Supreme Court and consider how far and to what extent the amicus curiae device has been accepted in decisions of the High Court of Australia. The authors analyse the High Court’s treatment of applications for admissions as amici curiae, noting the divergent approaches taken by Chief Justice Brennan and Justice Kirby, and drawing attention to the practical difficulties faced by applicants who seek admission to make oral submissions. Human rights cases raise questions of minority rights that should not be adjudicated without input from those minorities. The authors recommend that Australia adopt the U.S. approach, to admit written submissions as a matter of course, and to allow applicants to make oral submissions when they have a serious and arguable point to make. This approach is consistent with the Court’s significant role of establishing legal policy norms for the entire nation, including for the identity groups that increasingly occupy the Court’s attention. The focus here is on Australia, but the argument for the role of amici is more general and might well apply to high courts elsewhere.

https://journals.latrobe.edu.au/index.php/law-in-context/article/download/127/189

Human Rights issues in constitutional courts : Why Amici Curiae are important in the U.S., and what Australia can learn from the U.S. experience

Frankfurter is certainly right in suggesting that we need to focus on procedure and understand that seemingly technical rules can have huge implications for the access to justice in a society. It is for this reason that I find this conference so interesting. I am also pleased that the conference has a comparative component for reasons beyond my good fortune to have been invited to Australia. Societies governed by the rule of law have many things in common, and we can learn from one another. The flip side is the problem I have alluded to about globetrotting constitutionalists. Unless we are willing to learn about some of the nitty-gritty details, our comparisons will be superficial for the reasons Frankfurter proffered. I believe that what helps bridge this dilemma is to try to place the esoteric rule of procedures in a broader context of a constitutional or legal order. This becomes essential if we are trying to make normative judgments, either comparatively or for our own systems.

/pdf/access-to-justice-procedure-polity-and-politics-4j7v6gorpn.pdf

H.W. Perry

Papers

Deciding to Decide: Agenda Setting in the United States Supreme Court

The Political Battle for the Constitution

Redefining the Supreme Court's Role: A Theory of Managing the Federal Judicial Process

Human Rights issues in constitutional courts : Why Amici Curiae are important in the U.S., and what Australia can learn from the U.S. experience

Access to Justice: Procedure, Polity, and Politics