Two more briefs, addressing the merits of the Sebelius v. Hobby Lobby dispute, hit our inboxes this morning, including Hobby Lobby's response brief. Washington University in St. Louis also took the time to highlight a brief by "Church State Scholars," to which they added a handy accompanying video.
These briefs, and the dozens of others that we haven't read, got us wondering: how many briefs have been filed so far? And does anybody read them?
Not So Brief List of Amicus Curiae Briefs
As always, the best source for amicus briefs is SCOTUSblog, which uploads and color codes the amicus input, as the Supreme Court itself does not publish the briefs.
What were the totals? At cert-stage (before the Court granted the petition for certiorari), SCOTUSblog listed six briefs. At the merits stage, however, there are a whopping eighty-two amicus briefs from professors, politicians, priests, private think tanks and other organizations.
How does that compare to past cases? The ABA Journal broke out their abacus and tallied up the totals from the last few terms, and this case ranks right up there. Last term, Hollingsworth v. Perry had 96 briefs at the merits stage, while United States v. Windsor brought in 80, though some briefs covered both cases. The big affirmative action case that ended with a whimper, Fisher v. University of Texas drew 92 amicus briefs.
Those numbers pale in comparison to the Obamacare (Patient Protection and Affordable Care Act) case, which brought in 136 filings.
Does Anyone Actually Read These Things?
The Hobby Lobby case presents an interesting question about the religious rights of for-profit corporations, but despite our interest, we can pretty much guarantee that nobody in this office has read all eighty-two briefs, plus the two briefs filed by the parties themselves.
Does the Court read the briefs? We'd assume that the clerks are forced to. And Justice Sotomayor apparently does, as she cited amicus briefs in 11 out of 16 opinions that she authored in the 2012-2013 term. For comparison sake, Justice Scalia cited amicus briefs in only 3 out of 23 opinions that he prepared, notes the ABA Journal.
Plagiarism Analysis Studies
Citation rates are one useful measure of amicus influence, but what about the language itself? If the Court borrows language from an amicus brief, not only does that mean the brief was read, but it also means that it said something worthwhile.
In two studies using plagiarism analysis tools, Professors Pamela Corley, Paul M. Collins, Jr., and Jesse Hamner analyzed both the origins and the effect of amicus brief language. In one study, they found that the content of these briefs was largely original (apparently plagarism isn't big amongst think tanks and professors), and therefore valuable. (A bit of a leap there, one might argue. Novelty does not equate to quality.)
In the other study, the professors found that the higher the quality of the brief, the more likely it was to be cited (an obvious, yet now verified proposition). Also, as one might expect, out of all of the amicus briefs submitted, the Solicitor General's briefs were the most likely to be the source of language borrowed by the Court.
- 'Campus Colors': Unanswered Questions, Role of Amicus (FindLaw's U.S. Supreme Court Blog)
- SCOTUS Sleeper: Speech Rights of Government Employees Returns (FindLaw's U.S. Supreme Court Blog)
- Friday Frills: The Jabot (or Neck Doily) (FindLaw's U.S. Supreme Court Blog)