How to influence what cases the Supreme Court takes.

The law, lawyers, and the court.
Dec. 5 2008 6:55 AM

The Early Brief Gets the Worm

Liberal groups are ceding a key way to influence the Supreme Court.

In its last term, the U.S. Supreme Court heard fewer cases than it has in any single term in more than 50 years. This means that getting your case heard at the high court is about 10 times harder than getting into Harvard. How do you up your odds? Just as a recommendation letter from a well-placed alum gets attention from an admissions office, a supportive brief from an advocacy group, sent to the court at the stage when it's deciding whether to take a case, flags a case for the justices.

Each year, parties that have lost in the lower courts file about 9,000 petitions for a writ of certiorari (cert for short) in which they beg the court to hear them. The Supreme Court has nearly complete discretion over which cases it will take. Last term, only 69 cert petitions resulted in arguments before the justices. The lucky few were more likely to have gotten a helping hand from a friend-of-the-court brief, filed by an outside group with an interest in the case's outcome. Influence, in this sense, is all about timing. Amicus briefs, as they're known, tend to pile up on both sides of a case once the court takes it, all competing for the justices' attention. But the amicus briefs filed before the court grants cert are much rarer, and, accordingly, more influential. Yet this is a tool that liberal groups often fail to use.

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The private groups and advocacy organizations that most frequently urge the court to take a case are overwhelmingly pro-business, anti-regulatory, and ideologically conservative. For liberal groups to cede the cert-stage battleground is to forfeit a key phase of the war. When left-leaning groups ignore an opportunity to tell the court to hear the cases most likely to be decided in their favor, they are doing their causes a disservice.

Here are the numbers: Between May 2004 and August 2007, nearly 1,000 private organizations filed cert-stage briefs. Only a few make it a habit—just 16 groups filed eight or more early-bird briefs a piece. Ten of those top amici serve business interests and conservative causes. They include the Products Liability Advisory Council, the Pacific Legal Foundation, and the National Association of Manufacturers. And the king of the amici, the U.S. Chamber of Commerce, filed 55 briefs over the period studied, or about 17 each year.

Among the top 16 cert-stage amicus filers, the National Association of Criminal Defense Lawyers is the only one that might be considered a liberal interest group. It ranked second to the Chamber of Commerce with 33 briefs. The American Civil Liberties Union tallied just two cert-stage amicus briefs during the three years under review.

Meanwhile, the right-leaning major players pushed the Supreme Court to take some of its biggest recent cases, including cases on school desegregation plans in Seattle and Louisville, punitive damage limitations in tobacco cases, and the constitutionality of denying federal funds to universities over the military's policy toward gays. In all, the conservative groups in the top 16 succeeded in getting the cases they were pushing heard between 20 percent and 40 percent of the time. That's compared to the sub-1 percent success rate of the average petition.

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