by Matthew M.C. Roberts. El Paso: LFB Scholarly Publications LLC. 177pp. Cloth $65.00 ISBN: 9781593324667.
Reviewed by Todd A. Curry, Department of Political Science, Western Michigan University. Email: todd.a.curry[at] wmich.edu.
Argued over the course of four days, Brown v. Board of Education (II) (1955) took the form of an atypical case. Eschewing the norm of a single advocate for each side of the case, the Court allowed seven additional attorneys to participate in oral arguments. Six of these attorneys, representing various states, petitioned for leave to engage the Court. The last, Solicitor General Simon Sobeloff, answered the call of the Court by responding to their request for his presence.
Matthew M.C. Roberts examines this rare process of amicus curiae participating during oral arguments before the Supreme Court. As Roberts points out, during the time period of his analysis from 1953 – 1985 the average number of cases per term with oral amici is slightly above 8%, with no single term rising above 16%. Roberts asks under what conditions do amici participate in oral arguments, and when they do, does their presence affect the decision-making of the Court?
The book is separated into four chapters which follow a logical progression. The introductory chapter also contains the theoretical contribution which motivates the rest of the examination. Roberts argues that we should expect an increase in the likelihood of an amicus appearing during oral arguments when the Court faces an information deficiency. An information deficiency can occur for two reasons. First, the case itself could be sufficiently complex, or in an area of law where a number of the justices feel unsure. Second, one or both of the attorneys could be of low quality or inexperienced. In both of these instances, Roberts hypothesizes that the Court will be more likely to allow an amicus to participate in oral arguments.
Furthermore, Roberts articulates a second hypothesis, which states that the presence of an oral amicus should increase the likelihood of a decision for the side which the amicus supports. Robert’s theorizes that because oral amici provide a possible solution to the information deficiency of the Court, and also the attorneys who are likely to serve as oral amici are more experienced, the overall effect will be a Court which is more likely to decide for the side they represent. On the individual level, Roberts claims that there will likely be an ideological component to the likelihood a justice will support the amicus on the merits, and expects to see the strongest effect with moderate justices.
Chapter 2 examines factors that may influence the appearance of oral amici before the Supreme Court. Roberts uses the 1979 Supreme Court term to examine this question, but does not explain why this term was chosen, or if he has reason to believe that it is representative of Supreme Court [*333] behavior. For this term he codes three variables he believes will be likely predictors of the presence of oral amici, prior Supreme Court litigation experience, previous Supreme Court clerkship, and the education at an elite law school. These variables are aggregated for all attorneys appearing on one side of the argument. Robert’s finds that only one variable, previous litigation experience is correlated with the likelihood of an oral amicus.
There are two issues in this chapter which I feel may have an impact on the reported findings. First, there are three ways by which an amicus can appear before the Court during oral arguments. The amicus will either be requested to appear by the Court, must receive permission of the party it plans to argue with (and then agree in most cases to split time), or petition the Supreme Court for leave. While the majority of oral amici choose to receive permission from one side of the case, non-trivial amounts come from the other two categories. It could be that oral amici populating these two methods have something inherently different from those amici which receive approval from a party of a case. This leads to the second critique, that one party makes up the majority of the remaining two categories, the Office of the Solicitor General (OSG). Very rarely will the Court extend an invitation to anyone except the OSG, and it is exceedingly rare for them to approve a petition to appear at oral arguments for anyone except the Office (e.g. In 1979, amici petitioned to appear in ten different cases; the Court only granted leave in two, both to the OSG whom only asked to appear in two cases). An extensive line of research demonstrates that the OSG is treated different by the Court (Pacelle 2003), and if taken into account, this could augment Roberts’ findings.
Chapter 3 is the heart of the book. Using Gibson’s United States Supreme Court Database, Phase II: 1953-1985, Roberts tests whether the presence of oral amici before the Supreme Court has an effect on the decision of the Court and the votes of the individual justices. In order to control for the possibility that the Court may be more likely to request/allow groups which are ideologically congruent with the Court majority, Roberts wisely drops most cases in which the Court invited the attorneys to participate or cases in which the Court approved their appearance However, he leaves cases in which the OSG requests permission of the Court to appear. Removing these cases likely would have significantly reduced the number of cases available for analysis, though the same issue with ideological congruence may be present. The findings of this chapter bring new insight to the area of amicus curiae, but still extend what we know about attitudinal behavior. The Court is more likely to decide in favor of a side which has an oral amicus. Individual justices demonstrate a similar behavior, again extending what we know concerning the functioning of ideology. The graphs in this chapter are particularly informative, and demonstrate his findings effectively.
There still however remains an issue of behavioral equivalence. It is difficult to separate whether the justices would have decided this way with or without the oral amici being present. The true question, which Roberts attempts to answer in the final section of Chapter 3, is whether the oral argument of the amicus had a [*334] measurable effect on the disposition of the case as evidenced by the opinion of the Court. In order to do this, he takes a random sample of twelve cases from the Burger Court and codes each syllabus point in the Court’s opinion and attempts to determine if this was discussed in the party’s brief, during oral argument, in both, or if it was original information from the Court. Across twelve cases not a single syllabus point was raised solely during oral arguments, however, the modal category was “discussed in both,” demonstrating that the amicus’ presence during oral arguments may serve to reinforce the brief’s information. With only twelve cases, I think the results should be considered tentative, and an area I imagine the author will pursue elsewhere. I feel this chapter builds the reader up, and then leaves her wanting for evidence of a true causal linkage.
The conclusion is well written and demonstrates how the findings are able to contribute to various subfields of judicial politics including work on amicus curiae, oral arguments, and the impact of attorneys. Roberts argues that a strategic, but inexperienced attorney should offer to split time with a more established attorney. Knowing merely that an oral amicus’ presence will increase the likelihood of their side winning, it will always be to her advantage.
Brown v. Board of Education (II) (1955) is a notable outlier in terms of oral amici participation in nearly all regards. There is, however, one actor involved in the case that is a frequent participant as an amicus during oral arguments. The Office of the Solicitor General is by far the most frequent participant as an amicus before the Supreme Court. Referencing data from the author, of the 384 cases which had oral amici over the span of the analysis, the United States, (which is almost always represented by the Solicitor General’s Office) is the most frequent party, participating in 276 of them. While Roberts posits some interesting and compelling theories, which are of value to scholars of amicus curiae and oral arguments, the failure to conceptualize the role the OSG may play as an oral amicus, calls into question some of the conclusions based on the empirical findings of this book.
Pacelle, Richard L. 2003. Between Law & Politics: The Solicitor General and the Structuring of Race, Gender, and Reproductive Rights Litigation. College Station: Texas A&M University Press.
Brown vs. Board of Education (II) 349 U.S. 294 (1955)
Copyright 2012 by the author, Todd A. Curry