Organized Interests Before the Supreme Court: Setting the Agenda

Abstract

Twenty years ago, we published a paper in the American Political Science Science Review in which we argued for and demonstrated the importance of organized interests in setting the Court’s agenda. The Court, we showed, responded sharply and positively to the presence of briefs amicus curiae; the more briefs filed, the higher the probability of a grant of plenary consideration. Briefs amicus curiae enhanced the chances for a petition for a writ of certiorari, above and beyond a host of other important forces, including square conflict and the presence of the United States as a petitioner. Organized interests participating as amici curiae, we theorized, provide the justices with information about the social, political, and economic consequences of cases, information not readily available to them. Since 1988, when it was published, and OT 82, from which we drew our data, the political and legal landscape has changed a great deal. Thus, for examples, the number of amicus briefs filed before certiorar has increased and the mandatory jurisdisctional has been abolished. Here we return to the question of how and why the Supreme Court sets its plenary agenda. We have gathered additional data on agenda-building, extending our set of terms backward and forward and deepening the set of variables available for analysis in each of our terms. We ask: do briefs amicus curiae continue to play an important role in agenda-setting in the Court? If so, has the impact of organized interests increased or declined over time? Is the relationship between the presence of briefs amicus curiae and agenda-setting spurious? Do interest groups simply file briefs in cases in which the Court is disposed to hear? To what extent are the Court’s decisions on different cases independent of one another? If choices on different cases are more or less interdependent, what if any effect does it have on our estimates? Do the justices respond to different considerations on writs of appeal and writs of certiorari? This last question is, in one sense, largely historical with the demise of most appeals after 1988; but the answer to it will provide some leverage on the impact of a legal “institution,” the mode by which cases come to the Court.

Keywords: supreme court, certiorari, agenda control, interest groups, amicus curiae

JEL Classification: K40, K41