Académique Documents
Professionnel Documents
Culture Documents
Rachel Harrison
PL SC 300H
Dr. Casper
14 December 2016
Harrison 2
Harrison 3
affected groups hypothesis, which portrays the notion that amicus briefs influence the Court
because they indicate how many people and groups would be influenced by the decision. The
second theory is the information hypothesis. This states that amicus briefs are effective
because they provide the Court with more arguments and information. He coded for the
number of briefs that the petitioner and respondent sides filed. In order to control for the
success of the United States Solicitor General, Collins coded for the side that the Solicitor
General supports. He also took into account the changing ideology of the Court over the
course of the research. The research found that interest groups file amicus curiae briefs in
equal amounts for both the petitioner and respondent. The petitioner is typically viewed as the
side that has the upper hand in a case. This is interesting because it shows that interest groups
are getting involved with cases that they believe in and are not simply picking sides based on
who is historically more likely to win the case. It was also found that it is the amicus brief, not
the amicus participant, leads to a higher likelihood of success. Collins also found that the
United States Solicitor General is consistently more influential in impacting Court decisions
than any other interest group filing for either party. Results indicated that cosigning amicus
briefs does not have a significant impact or increase on the likelihood of litigation success
(Collins, 2004, 825). This article is very important because it underlines the significance of
the United States Solicitor General in being about to sway the opinion of the Court. Another
takeaway form the article is that even though the petitioner may be more successful overall,
interest groups are solely concerned with promoting their cause and do not pay attention to
this idea.
Harrison 4
There are conflicting results on the effectiveness of amicus curiae briefs, however.
Donald Songer and Reginald Sheehan conducted research on the effectiveness that amicus
curiae briefs have on the opinion of the Court and reached findings that are different from
other scholars, namely Collins. They took published decisions by the Court on odd numbered
years between 1967 and 1987. Cases were selected that had amicus participation by
businesses, private associations, and interest groups. Cases were eliminated that had amicus
briefs filed on both sides of a case. The cases were also separated based on the topic. Cases
were then paired based on having the same topic and whether the amicus briefs were filed for
opposite parties. Even though these cases were paired based on topic, they did not have
identical case facts. Of the 264 cases and 132 pairs analyzed, the success rate for parties with
one or more briefs filed was almost the same as the success rate as the litigants that did not
have any amicus briefs filed. Parties that were supported by one of more amicus brief had a
success rate that was slightly less than that of litigants with no amicus briefs. An explanation
for this outcome is that the Justices may have had differing political ideology preferences,
which could overrule the arguments made by the briefs (Songer and Sheehan, 1993, 348). The
research design that Songer and Sheehan employed is very different from the approach that I
will be taking in my own research. Their idea of pairing similar cases together is very unique
but is also subject to some questioning as to how they arrived at this research design. This
method of conducting Supreme Court research is very unique in the field.
There are currently no scholars who have completed research that pairs together both
the effectiveness of amicus curiae briefs submitted by interest groups and the topic of criminal
procedure cases. Erwin Chemerinksy provides an analysis of the patterns of the Roberts Court
Harrison 5
when presented with criminal procedure cases. During the first five years of the Court,
Roberts sided with the conservatives twice as many times as he did with the liberal Justices.
This can be reflected in the biggest changes to criminal procedure cases during the first five
years of the Roberts Court. This includes, lessening the protection of the right to counsel
under the Sixth Amendment; cutting back on the privilege against self-incrimination under the
Fifth Amendment; and attacking the exclusionary rule under the Fourth Amendment
(Chemerinsky, 2010, 15). The conservatism of the Roberts Court is underlined with the
decision of Hudson v. Michigan. Prior to this case, police were expected to knock and
announce before they entered a home. The Supreme Court ruled 5-4 that the Exclusionary
Rule does not apply when the police violate the knock and announce rule. The 4 dissenters,
Scalia, Roberts, Thomas, and Alito, created a band of conservative justices that will shape the
future of 4th Amendment exclusionary cases (Chemerinsky, 2010, 21). Because of these
conservative decisions by the Roberts Court with regard to criminal procedure cases, it will be
very interesting to observe any changes in the voting trends of the Justices through the length
of the Roberts Court through present day.
Part III: Theories or Hypotheses
According to Article III of the United States Constitution, the Supreme Court is
designed to be an insulated branch of government. The framers did not want the Court to be
influenced by the popular views or trends of public opinion. They designed the Court so that
the Justices would not be punished for ruling in a manner that opposed the views of Congress
or the President. Justices are given the ability to serve for life and not have their salaries
regularly adjusted by Congress. Even with these precautions, however, outside influences
Harrison 6
have been able to creep into the judicial system through the direct lobbying of interest groups
that file amicus curiae briefs.
Amicus curiae briefs are submitted by interest groups and are written with the express
purpose of persuading the Supreme Court Justices to rule in favor of a certain party. Actors,
such as the United States Solicitor General and state attorney generals, also submit amicus
curiae briefs to the Court. Different states will oftentimes sign the same amicus brief in an
effort to widen their fight and increase their influence on the Court. Amicus briefs saw a
major increase in the number of times they were submitted by organizations throughout the
twentieth and twenty-first centuries. Between 1946 and 1955, 23.45 percent of all Supreme
Court cases had amicus briefs that were filed by various organized interest groups. By 1986,
85.1 percent of all cases had at least one amicus brief filed (Kearney, 2000, 753). This change
exhibits a significant increase in not only the total number of briefs filed but also exhibits an
increase in the amount of judicial lobbying by interest groups on behalf of personal interests.
I will be examining the effectiveness of submitted amicus curiae briefs by partisan
interest groups for criminal procedure cases during the Roberts Court. Because of the
significant increase in filed amicus briefs at the outset of the Rehnquist Court, it would be
beneficial to see if the Justices have responded differently to organized interest groups over
the course of the Roberts Court. Established and consistent interest groups, such as the
NAACP and the ACLU, may have a more significant impact on the outcome of a case than a
partisan, unreliable source. The United States Solicitor General could also have a significant
impact on the opinion of the Court. This individual is typically well respected by the Court
because they are viewed as a reliable source of information and frequently submit briefs on a
Harrison 7
wide array of cases. It will be important to note if the Justices rule in favor of a certain party
and cite certain arguments made in filed amicus curiae briefs. I will be examining criminal
procedure cases because this is an area of the law that sees highly contested issues that are
constantly evolving. These cases are important to analyze today because of the development
of new law enforcement technology and the growing number of conflicts that individuals have
with local law enforcement officials.
The Roberts Court has historically had a strong conservative voting block. Therefore, I
expect that there will be a positive relationship between conservative interest groups filing
briefs and successfully swaying the conservative block of the Supreme Court to rule in favor
of the supported party. Evidence of this sway can be found in the opinion of the Court and
whether these conservative arguments are cited, summarized, or not used in the opinions. In
order to operationalize my variables, I will use a cross tabulation comparing conservative and
liberal interest groups to whether the majority opinions of the cases include language from the
filed amicus curiae briefs. This will make comparing these two variables much easier. I can
also run a two-sample t-test to compare whether the difference between the number of amicus
curiae briefs submitted from conservative and liberal interest groups is statistically significant.
Majority
Harrison 8
Harrison 9
used from the brief in the opinion, and 2 means that direct quotations from the brief are cited
in the opinion itself. I will use the universe of criminal procedure cases during the Roberts
Court (2005-present) and my unit of analysis will be Supreme Court cases.
In order to measure the language that is used in the opinions of the Court, I will use
WCopyfind. This is a plagiarism software that is able to detect language that is copied from
one document into another. I will run this software to detect the amount and type of language
that is lifted from an amicus brief and incorporated into an opinion by the Justices. It will be
important to read the sentences that surround any language that is summarized or directly
used in the opinion in order to ensure that the Court is using the same language to argue in the
same manner. This will help to distinguish situations that may arise when the Court is openly
disapproving of a school of thought that is being proposed by an interest group in an amicus
brief (Collins, Corley, and Hamner, 2016, 11). I will also use LexisNexis and Westlaw to
obtain the universe of criminal procedure cases during the Roberts Court. I will be able to use
statistical software, such as R Studio or STATA, to determine if there are any statistically
significant relationships between the independent and dependent variables.
Part V: Feasibility
There is some helpful datasets on the Supreme Court Justices provided by the
Supreme Court Database. There is a dataset that organizes cases based on the issue and legal
provision for each case. Cases Organized by Issue/Legal Provision will be very useful
because it will help me to identify criminal procedure cases during the Roberts Court. The
unit of analysis is the case. The timeline of this dataset spans from 1946 to 2015. The data will
help me to break down my research into more specific topics under the umbrella of criminal
Harrison 10
procedure cases. The variable, Legal Provision, pinpoints the Constitutional statute that is at
issue in the case. Its variable in the dataset is LawType, and it codes more broadly than the
supplemental variable, LawSupp, which codes the cases for the specific constitutional
provision at issue. LawType codes a provision based on whether the rule originates from the
Constitution, federal statute, or court rules. LawSupp codes statues as a number between 100
and 900, which correlates to specific areas of the Constitution. One of the problems with the
dataset is that only one constitutional provision is coded per case, even if there could have
been more than one rule cited or at issue. Another problem with the dataset is that it fails to
include provisions of the Constitution that are less widely cited. The authors of the dataset
determined which provisions to code for based on summary in the Lawyers Edition. The
entry of a variable into the dataset occurs when the summary includes a certain legal provision
in the majority opinion of the Court. In cases where a federal law is being challenged, two
legal provisions are usually included: a cited provision and the challenged federal law. The
values of LawType range from 1 to 9, omitting 7. 1 means that the issue of the case refers to a
Constitutional statute, 2 refers to a Constitutional Amendment, 3 refers to a Federal Statute, 4
refers to Court Rules, 5 refers to Other, 6 refers to Infrequently litigates statues, 8 refers to
State or local law or regulation, and 9 indicates No legal provision. This dataset is accessible
as an Excel spreadsheet and can be accessed through The Supreme Court Database website. I
believe that this dataset will be very helpful because it captures the universe of cases between
1946 and 2015. It is also very helpful that this dataset codes the cases based on the legal
provision at issue. This will make it easier for me to pinpoint the cases that address questions
regarding criminal procedure.
Harrison 11
The Supreme Court Database also has a dataset on cases organized by the Supreme
Court citation. The unit of analysis is the case. The timeline of this dataset spans from 1946 to
2015. The dataset includes one detailed justice vote per case. Each Justice has their own
numeric value that they are coded with. These values range from 1 to 114. The Justices
names are also shortened and included next to their coded value. The variable, vote, also notes
the decision of the specific Justice. This is coded on a scale between 1 and 8. 1 indicates that
the Justice voted with the majority or plurality, 2 indicates that the Justice has a dissenting
opinion, 3 means that the Justice has written a regular concurrence, 4 means that the Justice
has written a special concurrence, 5 means that the Judge has the judgment of the Court, 6
indicates a dissent from a dismissal of certiorari, 7 indicates jurisdictional dissent, and 8
means that the Justice engaged in an equally divided vote. This dataset is particularly useful
when trying to follow how specific Justices voted in certain cases. The dataset also includes
the majority and minority votes for each case. This dataset would be more helpful if it
included information on all of the decisions of the Justices who voted in each the case in the
dataset, instead of including information on a single Justice. However, by examining the
Justice that is included in the dataset, one can make predictions as to how the other Justices
voted.
There is a dataset that records the Supreme Court Cases and organizes them by docket.
This dataset comes from the Supreme Court Database and the unit of analysis is the case. This
dataset includes a column for coding the docket that the case is a part of. The timeline for this
dataset spans from 1946 to 2015. The docket variable is notated as, docketId. The first four
digits of the case number indicate the year that the case was heard. The next three digits
Harrison 12
indicate the numbered case of the Court term, and the last two digits indicate the number of
consolidated dockets under the U.S. Reports citation. This dataset is helpful for my research
because it makes it easier to group cases together based on time period. By being able to
group cases together based on the docket, it is easier to identify and analyze trends over the
course of the Roberts Court. Identifying cases based on the docket adds a level of specificity
to the analysis of voting trends with regard to criminal procedure cases. This dataset can be
accessed on the Supreme Court Database website.
LexisNexis Academic allows for research to be completed on specific Supreme Court
cases. It also allows cases to be searched based on their topic. I will use LexisNexis Academic
when looking up the universe of criminal procedure cases during the Roberts Court. Along
with these cases and opinions, LexisNexis also includes all briefs that are filed for a case. This
will allow me to access the amicus curiae briefs and carry out my research to compare the
amicus briefs with the majority opinions of the Court. This resource also allows for specific
years of the Court to be searched as well. When I access the amicus curiae briefs, I will use
the software WCopyfind to determine if the majority opinion of the case includes language
from the briefs. I will code this language on a 0-2 scale. 0 indicates that no language from the
amicus brief is used in the majority opinion. 1 indicates that summary language is used from
the amicus brief in the majority opinion. 2 indicates that some of the language from the brief
is used in the majority opinion of the Court. It is important to read the language that surrounds
summary or exact language used in a majority opinion to determine if the author of the
opinion is supporting the argument or is using the language as a way to disprove the argument
of the brief. Coded language for each case will be entered into an Excel spreadsheet. The
Harrison 13
partisanship of the group that files the amicus brief will also be coded and included in the
dataset. LexisNexis Academic is a very important resource because it will allow me to collect
the universe of criminal procedure cases and amicus curiae briefs filed for each case during
the Roberts Court. The resource could be improved by making it easier to find the briefs
attached to each case on the website.
A concern is that there is no data on the partisanship of interest groups. There are no
datasets on the topic, which forces me to create my own scheme for determining the
partisanship of an interest group. This is a discretionary task and I will be diligent in maintain
my criteria for interest group partisanship. I will look at the side that the interest groups is
advocating for in a case and the partisan issue that an interest group has endorsed or supported
in the case. Another way to look at the partisanship of an interest group is to look at the
number of briefs that the groups has submitted in total for a certain topic or issue. Another
concern is that there is research on the effectiveness that amicus curiae briefs have on the
Supreme Court and of the recent patterns of the Court in its rulings on criminal procedure
cases. However, there is little to no research on these combined topics. Therefore, there is no
available data on this topic specifically. I have to rely on the Supreme Court Database to
provide helpful data that will steer my own data collection and analysis. I believe that it will
be reasonable to employ my current research design because the number of cases that I am
looking at is limited in number. I also do not think that it will be too difficult to marry the two
topics together to create my own original data.
I believe that the three datasets from the Supreme Court Database are both reliable and
valid. The data from the three Supreme Court datasets are factual and easily replicable, such
Harrison 14
as the term of the case, justices votes, or the constitutional provision in question. Each of
these datasets is either case or justice focused. These two focuses are both rooted in facts of
the cases. For example, the issue/provision dataset is very helpful in determining the
constitutional provision in question for each case. This research is replicable no matter who is
collecting this data. The dataset based on the docket is also easy to replicate and has an
extremely high probability of producing the same results. The same applies to the dataset on
citation. These three datasets all include data that can be easily collected and are not
normative in nature. Researchers should be able to replicate the data collection and achieve
the same results.
The dataset that I am creating from LexisNexis Academic should be highly reliable
and valid, thanks to WCopyfind. This program should uniformly alert when language is used
and to what degree. This removes a great deal of variability from the process of data
collection. The greatest variability from this data collection could stem from determining
whether language used in the majority opinion is meant to uphold the opinion of the Court or
disprove the argument made by the amicus curiae brief. The results from this dataset should
be valid and reliable for future research. Without a program to uniformly find similar
language in the amicus brief and majority opinion, this research would be at a higher risk of
suffering from validity problems and might not be ultimately replicable.
There are a number of positives and negatives from using these data sources. The
Supreme Court Database provides me with three datasets that provide important numbers that
support my research. The dataset of cases organized by issue/legal provision is beneficial
because it helps to separate cases based on the constitutional provision in question into
Harrison 15
defined categories. This creates a standard system of identification for my research. The other
benefit of using this dataset is the use of the two variables, LawType and LawSupp. LawType
is helpful because it narrows the issue of the case into a broad category of jurisdiction, and
LawSupp is beneficial because it codes the issue of the case to a specific provision of the
Constitution. The dataset of cases organized by citation is beneficial because it helps to
distinguish the decisions and opinions of the judges. The major drawback of this dataset is
that it does not provide this data on how every Justice voted. It includes the total vote count
and the specific actions of one Judge. If the dataset provided this data on each Judge, a more
defined picture would culminate regarding the actions of all of the Judges. The dataset of
cases organized by docket is helpful because it helps to group cases together into a more
specific time period. Instead of simply relying on the year of the Court, a researcher can split
cases by year and again based on the docket. This adds an increased level of specificity to my
research. A negative of this dataset is that the dockets do not have a more specific time frame
during which the cases are heard. It would be helpful to know during which portion of the
year the Court heard the docket. However, the researcher can infer this based on the
chronology of the dockets. LexisNexis Academic is an extremely important resource for my
research. It allows me to collect information on the majority opinion and amicus curiae briefs
for each criminal procedure case during the Roberts Court. This makes it an integral
component of my research. A negative of the database is that it is sometimes difficult to locate
where the amicus briefs and majority opinions for the cases are on the pages for the cases. The
researcher needs to become accustomed to sifting through the legal jargon of cases in order to
locate the integral components of the cases.
Harrison 16
Harrison 17
opinion of the interest group has a greater effect on the decision of the Supreme Court. In
reality, if the Court could use a smaller amount of language that could have a much more
profound impact on the decision of the Court because in law, individual words could have a
significant impact on the interpretation of a case. If I did include this variable in my research
design, I would measure this variable on a 0-2 scale. 0 means that none of the language from
the language from the brief is included in the majority opinion of the Court. 1 means that
background information, data, and facts used in the brief are also included in the majority
opinion. 2 means that a significant amount of language used in the reasoning of the amicus
brief is also included in the majority opinion of the Supreme Court. Ultimately, I am not sure
that this variable would be a reliable way to signal that an interest group had a significant
impact on the majority opinion of the Supreme Court.
Lastly, I would like advice on whether I should code for the reliability of the interest
group. It has been found in scholarly articles that the Supreme Court is more responsive to
established and widely respected interest groups, such as the NAACP. This was also an idea
from a classmate, but I am not sure how feasible this idea would be because of the lack of
data on interest groups. I possible way to do this would be to code the interest group based on
how long the group has been in existence for. However, there could be interest groups that
have existed for a long time but are not well respected by the general public or by the
Supreme Court. I am not sure what the best way would be to account for this attitude towards
the interest group itself. I am also not sure if this variable would be ultimately necessary for
the research.
Harrison 18
Collins, Paul M., Jr. "Interest Group Influence on the Supreme Court: Theoretical and
Methodological Considerations." Southern Political Science Association (2006): 1-35.
Web.
Collins, Paul M., Jr., Pamela C. Corley, and Jesse Hamner. "The Influence of Amicus Curiae
Briefs on U.S. Supreme Court Opinion Content." Law and Society Review 49.4
(2015): 917-44. Wiley Online Library. Web. 30 Sept. 2016.
Harold J. Spaeth, Lee Epstein, et al. 2016 Supreme Court Database, Version 2016 Release 1.
URL: http://Supremecourtdatabase.org
Kearney, Joseph D., and Thomas W. Merrill. "The Influence of Amicus Curiae Briefs on
the Supreme Court." University of Pennsylvania Law Review 148.743 (2000):
744-847. University of Pennsylvania Law Review. Web. 29 Sept. 2016.
Lexis Nexis Academic. Lexis Nexis, n.d. Web. 22 Nov. 2016.
Songer, Donald Reeves, and Reginald S. Sheehan. "Interest Group Success in the Courts:
Amicus Participation in the Supreme Court." Political Research Quarterly 46.2
(1993): 339-54. SAGE Journals. Web.