The landscape of amicus curiae, or “friend of the court,” briefs has dramatically evolved in recent years, particularly during the October Terms (OT) of 2022 and 2023. The U.S. Supreme Court’s review of affirmative action programs at Harvard and North Carolina Universities saw nearly 100 groups and individuals file amicus briefs, a testament to their growing prevalence in major legal battles. This shift is evident from data showing that most cases before the justices now include multiple amicus filings, a far cry from their sparse use over 50 years ago.[1]
Amicus briefs serve the crucial function of allowing interest groups and other entities to provide courts with new or alternative legal perspectives and factual information. Justices rely increasingly on these briefs, which are often drafted by Supreme Court specialists noted for their advocacy skills and ability to identify cases suited to broad legal principles. Scholars Allison Orr Larsen and Neal Devins detail in their paper, “The Amicus Machine”, that the Supreme Court embraces this system because it aids in both case selection and ruling strategy.
One clear indicator of a brief’s impact is its citation in court opinions. Citations reflect that justices and their clerks have read and acknowledged the brief’s positions. Such citations are often used by advocates as proof of their efficacy and can be leveraged as marketing tools.[2] In OT 2022 and 2023, the affirmative action decision and the Grants Pass case dominated amicus citations, each garnering far more attention than other cases in their respective terms.Affirmative action decision; Grants Pass
Justices Neil Gorsuch and Sonia Sotomayor lead in citing amicus briefs, with their combined 142 citations exceeding those of the other justices combined, illustrating their reliance on such briefs in forming their legal views. Notably, dissenting opinions accounted for a higher percentage of amicus citations, suggesting that dissenting justices use these briefs to bolster their arguments against the majority’s opinion.[1]
This article offers a snapshot of how amicus briefs influence judicial decision-making. The implications for legal strategy are clear: understanding which justices are most receptive to amicus contributions and in what contexts can shape more effective filings. As the court continues to evolve, so too will the strategic deployment of amicus briefs by astute legal practitioners.