Ready, Aim, Fire: 250 Members of the House, 55 Senators, and 1 Vice President Agree on Something that Does Not Matter
On Friday, 55 United States Senators and 250 members of the House filed an amicus brief in District of Columbia v. Heller. The amicus brief urged the Supreme Court to support a lower court decision overturning Washington D.C.’s ban on handguns. The lower court opinion raised questions about the appropriateness of any gun control legislation. The Bush administration’s Solicitor General filed a brief arguing that the categorical approach of the lower court could endanger federal gun control measures. The Bush administration urged the Court to remand the case to see if the District’s ban was “unreasonable.”
Vice-President Cheney broke with the Bush administration and signed the congressional brief as the “President of the Senate.” Having the Vice-President sign a brief taking a position that is different than the administration’s is unprecedented. Given the vice-president’s well known tendency to shoot lawyers (here, more, more, more, more, don’t stop), it is also worrisome to those of us who live in the city with the nation’s highest per capita rate of lawyers (here).
Although the work of numerous political scientists (e.g. Richard Pacelle’s book Between Law & Politics: The Solicitor General and the Structuring of Race, Gender, and Reproductive Rights Litigation; Kevin McGuire book The Supreme Court Bar: Legal Elites in the Washington Community; an article I coauthored with Mike Bailey and Brian Kamoie; and an article by Jeffrey Segal) have clearly demonstrated that briefs by the solicitor general do influence court decision-making, the role that congressional amici briefs play is not as clear.
In her recently published book, Judithanne Scourfield McLauchlan found congressional amicus briefs to have a virtually non-existent impact on Court decision-making. She found that congressional amicus briefs were cited by the justices in just 10% of the cases where they were filed. Likewise, the position embraced by the amicus brief when there were amicus brief on only one side prevailed in only 54% of the cases. Her findings are similar to those that Rachel Paine Caufield found in her dissertation and presented at the 2002 annual meeting of the Midwest Political Science Association. Presumably, a monkey would have a 50% success rate. I should note that I compare members of Congress to monkeys because this is the monkey cage and one gets bonus points for employing the word monkey, not because I view the typical member of Congress as a banana hungry ape who refused to adopt an amendment that would prevent NASA from using Rhesus monkeys in space experiments.
If briefs don’t matter, why file? Rorie Spill Solberg and Eric Heberlig demonstrate in their 2004 gated article that members of Congress cosign onto amicus briefs as a mechanism for currying favor with their constituents and interested interest groups. In other words, position taking and grand-standing is alive and well on Capitol Hill. Of course, if the Court overturns the District’s ban and prohibits the district from banning hand-guns and automatic weapons, it is not clear what else will be alive and well in the Capitol.
Comments
The correct comparison isn’t monkeys, but other amici - I could be wrong, but its certainly possible that the percentage is a good deal smaller for that group. At the agenda stage, 50% would be pretty amazing.
Also, presumably (correct me if I’m wrong) these studies are counting briefs by one or two members as well as those by a majority - is that really a meaningful category?
Regardless, saying that congressional briefs don’t matter generally speaking in terms of outcomes (i.e. who wins) doesn’t tell us anything about whether it matters in particular cases in more subtle ways. (Litigants rarely care only about the outcome, at least when we are talking about major public issues like this one.)
If the justices are at all concerned with the likely response from the political branches to a decision on this highly controversial issue, it seems plausible that they might pay attention to this brief.
Posted by: David Kaib | February 11, 2008 12:53 PM
I concur. A comparison to other Amici is the appropriate comparison. At the merit stage, I am hard pressed to come up with a reason why amici should disproportionately support the losing party. 54% success is close to what one would expect if one was randomly choosing sides.
McLauchlan did find that the justices cite congressional briefs in 10% of cases. Others have reported that approximately a 1/4 of amici briefs are cited.
But, there could indeed be an important difference between the amici brief that is filed by a few fringe members and the one filed by a majority of the House and Senate.
Posted by: Forrest | February 11, 2008 01:49 PM
If I recall correctly, Heberlig and Spill, in their 2000 article “Congress at the Court” (Southeastern Political Review), did look at a number of distinctions in terms of congressional amicus briefs, finding that, essentially regardless of whether the amicus briefs were bipartisan, filed by members of the House and Senate, etc., there was essentially no evidence of influence in terms of the party supported in the briefs. Of course, this doesn’t necessarily imply that the briefs are inconsequential in terms of other aspects of the Court’s decision making, such as opinion content. But the fact that congressional amicus briefs are not influential with regard to case outcomes strikes me as a fairly interesting finding that has clear implications for analyses of separation-of-powers constraints on Supreme Court decision making.
Posted by: Paul Collins | February 11, 2008 03:38 PM