The Amicus Machine

Abstract

The Supreme Court receives a record-number of amicus curiae briefs and cites to them with increasing regularity. Amicus briefs have also become influential in determining which cases the Court will hear. It thus becomes important to ask: Where do these briefs come from? The traditional tale describes amicus briefs as the product of interest group lobbying. But that story is incomplete and outdated. Today, skilled and specialized advocates of the Supreme Court bar strategize about what issues the Court should hear and from whom they should hear them. They then “wrangle” the necessary amici and “whisper” to coordinate message. The result is orchestrated and intentional – the product of what we call “the amicus machine.”

This Article has two goals: (1) The first is to offer a new description of the origin of many Supreme Court amicus briefs, explaining how it is that the Justices and the advocates benefit from this choreographed amicus process. (2) Second, we make the perhaps surprising claim that the amicus machine is normatively desirable. Others have warned about the influence of the powerful lawyers of the Supreme Court bar generally. While acknowledging these risks, we argue that – when it comes to amicus briefs – the benefits of specialization outweigh the costs.

Keywords: amicus, Supreme Court, advocate, brief, Supreme Court bar