Gelf Magazine - Looking over the overlooked

Law | Science

August 22, 2007

Friends of the Court, with Benefits

Professor Paul Collins tells Gelf how he used statistics to understand the true power of amicus curiae briefs on the Supreme Court.

J. Michelangelo Stein

Quaint, anachronistic, perhaps extinct. Is this the state of the so-called "public-intellectual"? It would be easy to launch into a jeremiad lamenting the sad reality that Christopher Hitchens is postmodernity's answer to Ralph Waldo Emerson. Instead, Gelf plans to introduce you to those wonks who are doing important work but are perhaps too trepid to have engaged the general public themselves. Every month or so, we'll drag a young academic out from his unendowed folding-chair of assistant-professordom (should he even be so lucky) to talk to us about his research.

Our inaugural interviewee, Paul Collins, was an obvious choice. Not only did his work earn him the prestigious CGS/UMl Distinguished Dissertation Award (trust me, you don't want the full name) but his research is also exceedingly relevant to followers of American politics and law (American Political Science Association). Collins's dissertation, entitled "Friends of the Supreme Court: Examining the Influence of Interest Groups in the U.S. Supreme Court, 1946-2001," takes an exhaustive look at a half-century of amicus briefs penned by various interest groups and demonstrates their surprising sway. While justices have their own leanings toward a case, Collins found that they buttress their opinions with information from more policy-oriented briefs and adopt a greater sensitivity to those whom their opinion might impact most.

Paul Collins
"Since it is not necessarily possible for the law to provide objectively correct answers to pressing questions, there's a substantial amount of room for other influences to shape judicial decision making."

Paul Collins

For the disillusioned and cynical, Collins's dissertation might confirm their long-held belief that the law exists only as an instrument wielded by the powerful. To those otherwise inclined, it might fulfill their expectation that the most powerful court in the land would weigh every argument as carefully as possible and use amicus briefs as an important tool to avoid detachment from the concerns of the populace. That his dissertation offers ammunition to such disparate camps testifies to Collin's judicious approach. In the interview below, Collins, now an assistant professor of political science at the University of North Texas, tells Gelf about his layman's shtick, how his research will affect Court proceedings, and how he views his academic relationship with the public-at-large. [Editor's note: You can read many of Collins's published papers on his website.]

Gelf Magazine: You are at a cocktail party, surrounded by laypeople, and they ask you what your research is about. What's your standard response?

Paul Collins: My standard response is that I use statistics to study how judges render decisions. There is a conventional wisdom in America that, if you want to understand how judges decide cases, all you have to do is look at their opinions, which purportedly provide the justifications for their decisions. I refer to this as the "Civics Class" understanding of judicial decision making. While I do not deny that judicial opinions are important, they are questionable as sources for determining the influences on judicial choice. Harnessing the power of statistics, we can delve deeper and examine how a host of factors contribute to the choices judges make, including judges' ideologies, precedent, public opinion, persuasion, and even interest groups, which is one of my favorite veins of research.

GM: Has it been possible for you to discuss your research with laypeople without getting into their personal political beliefs?

PC: I'd say I have been pretty successful explaining what I do without getting involved in heated political discussions. It's funny—when I was younger, in high school and college in particular, I would love to get into knock-down-drag out arguments about politics. The older I got, the more I realized that, simply put, it's not worth it. Political beliefs are foundational beliefs—they are not going to change as a result of a single conversation or even a series of conversations. That's how I approach teaching. My goal is to educate, not indoctrinate.

GM: How about sharing your research with judges and lawyers, who can be guarded or sensitive about issues of political influence?

PC: They are usually pretty fascinated by what I do. Lawyers are interested for an obvious reason—much of what political scientists do speaks to the effectiveness of particular forms of legal strategy. I've discovered that a few judges also have a keen interest in political approaches to studying judicial decision making. While they are always guarded about explaining political influences on their decision making, some of the brightest legal minds in American history—Benjamin Cardozo in particular—recognize that the law is indeterminate. Since it is not necessarily possible for the law to provide objectively correct answers to pressing questions, that leaves a substantial amount of room for non-legal influences to shape judicial decision making, a point some jurists are willing to concede.

"I found that the justices were positively influenced by amicus briefs essentially regardless of their attitudes or the positions advocated in the briefs."
GM: How were you able to tease out causation from correlation when you were measuring the impacts of interest-group briefs?

PC: Attempting to decipher correlation from causation is one of the toughest things for social scientists to do. With regard to the influence of interest-group amicus curiae briefs on the Supreme Court, I typically rely on two strategies. The first and most common method is to attempt to control for other influences on judicial decision making. For example, if you look at the current Roberts Court, which is very conservative, you will find that they agree with the positions contained in conservative amicus curiae briefs more often than the positions contained in liberal briefs. But, does that mean the conservative briefs influenced their decisions? Maybe so, maybe not. In order to determine whether amicus briefs are influential, we have to take into account (control for) the fact that the Roberts Court is quite conservative. Only then can we get a sense of whether amicus briefs affect the justices' decision making.

The second strategy I have employed is to closely examine the ideological positions forwarded in the briefs. For example, if I thought that groups were filing briefs in cases they were predisposed to "win," I would expect to see conservative groups file large numbers of briefs when the Court is conservative, while liberal groups would do the same before a liberal Court. Interestingly, though, this is not the case. Liberal and conservative amicus briefs have effectively matched one another over time. This suggests that groups are not filing briefs in cases they think they are assured to "win," but instead participate in cases that genuinely impact the groups' interests.

GM: How do law clerks, who do a huge portion of the research and writing
for the justices, figure into your study? Are they more susceptible to interest-group influence than the justices for whom they work?

PC: That's another great question. Personally, I have not done much work on how law clerks fit into the picture, which is unfortunate, because it is clear they play a major role in the Court. One of the problems with studying law clerks, particularly contemporary law clerks, is that they are usually less than forthcoming about how particular factors, such as interest-group amicus curiae briefs, influence their decisions and those of the justices.

"I am skeptical of academics who use their credentials to further partisan agendas."
GM: Do you think this level of influence will change as the court becomes increasingly polarized, particularly with the loss of Sandra Day O'Connor, who was considered, more or less, a swing vote?

PC: I suspect there may be some minor changes with regard to how the current justices respond to amicus briefs. One of the central questions I sought to answer in my dissertation was how the justices process the information contained in amicus briefs. I started out with an idea adopted from social psychology called motivated reasoning. It's the notion that people process, and perhaps seek out, information in a biased manner, viewing information that is consistent with their ideologies more favorably than information that contradicts their political attitudes. It's an old concept, but pretty powerful. It's capable of explaining, for example, why conservatives are attracted to Rush Limbaugh and liberals listen to Air America Radio. Anyway, I thought it was applicable to the Supreme Court. If so, I expected to find that conservative justices would react favorably to conservative briefs, but ignore liberal briefs (and vice versa for liberal justices).
However, the results did not bear that out. Instead, I found that the justices were positively influenced by amicus briefs, essentially regardless of their attitudes or the positions advocated in the briefs. In other words, conservative justices do respond to liberal briefs and liberal justices do respond to conservative briefs. That being said, justices at the far ends of the ideological spectrum are not as influenced as justices in the middle, such as O'Connor. So, given that there are four justices who sit closer to the far right end of the ideological spectrum—Alito, Roberts, Thomas, and Scalia—it is likely that they will not be as influenced by liberal briefs as some of their more moderate predecessors.

GM: How do you think policy-makers or even informed and interested citizens will respond to the knowledge that interest groups have wielded great influence over the Supreme Court? What impact has your research had so far?

PC: Politicians from both sides of the aisle cast interest groups in a negative light, referring to them as "special interests," a term I despise. I take a more sanguine view of interest groups in that I believe they play a vital role in the political system, informing politicians and judges about the legal and political consequences of their decisions, while allowing for citizen participation in the democratic process. Also, I don't want to overstate the impact of amicus briefs. Yes, they are influential. But, they are one of many influences on Supreme Court decision making. That being said, in a weird way, amicus briefs keep judges more honest in that judges rely less on their attitudes in rendering decisions in cases with amicus participation.

As for how my research has impacted things, that's tough to say. On the one hand, I have been in contact with some interest groups and attorneys about their amicus strategies. On the other hand, I think most academics are cognizant that no single vein of research is likely to cause a major shakeup in the political world. In this sense, science, and social science in particular, is incremental.

GM: What are some of the weirder amicus briefs you came across in your research?

PC: As a rule, amicus briefs are very professional, particularly since they are written by attorneys. However, I have come across some strange briefs. I recall one brief that struck me as somewhat unusual. The brief began, as all amicus briefs do, with a short paragraph explaining the interests of the filer. Here the author felt it necessary to identify that fact that he was not a "gadfly." I had to look that one up. It means someone who constantly annoys. I'll bet that got a laugh from the justices and clerks.

GM: Overall, were you surprised by your results?

PC: Quite a bit, actually. I expected to find evidence that the justices engage in motivated reasoning with respect to the amicus briefs. That they do not took me by surprise.

GM: Unlike many dissertations, yours touches on something very large in current political life. Did that make your job easier or harder?

PC: I don't think I was any more or less cognizant of the possible impact of my research than the next Ph.D. candidate. To be sure, I think it is a very relevant topic, but every graduate student thinks the same of their dissertations. You wouldn't get into spending four or five years researching something you didn't have a pretty keen interest in. When I was doing the actual writing, I don't think I had much time to think about such things. It's a pretty unromantic lifestyle. I spent years collecting data, poring over social science, psychology, and law journals, and running statistical models, all in the hopes of getting everything done on time. I think I am more in tune with the relevance of my research now that I am turning parts of the dissertation into a book. [Editor's Note: Collins plans to submit the book to a university press next month.]

GM: How do you view the role of the intellectual, especially with respect to his/her place in the public? How involved in politics and policy-making will you be?

PC: That's a very challenging question. On the one hand, I think nonpartisan academic research plays an important role in public life, educating the citizenry about how the political system operates. On the other hand, I am skeptical of academics who use their credentials to further partisan agendas. To be clear, they have every right to do so. I am a firm believer in the First Amendment. It's just not something I am interested in doing. As for how involved I plan on being in politics and policy making, why don't we tackle that one in a few years, after I have tenure?

J. Michelangelo Stein

J. Michelangelo Stein, a history graduate student, lives in Los Angeles.







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- Law
- posted on Aug 22, 07
nish

nice article


Article by J. Michelangelo Stein

J. Michelangelo Stein, a history graduate student, lives in Los Angeles.

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