office would be staffed by seasoned, highly accomplished attorneys with significant experience in appellate and Supreme Court advocacy. Following general guidance provided by the Justices, these staff attorneys would review the petitions in the first instance, identify those petitions warranting closer attention by the Justices and their law clerks, and write up memoranda for their consideration in deciding whether review should be granted. The staff attorneys would possess both the time and the years of professional experience that the law clerks currently lack in evaluating the cert petitions. That would include, when needed, reading closely the briefs, the cited authorities, the lower court opinions, identifying how expert counsel may be overreaching in their framing of the case, and otherwise making up for gaps in advocacy. But also important, the staff attorneys would, as now, leave the final decisions to the Justices, assisted by their clerks as each Justice sees fit.
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Testimony of Allison Orr Larsen, William & Mary Law School
An Amicus Boom
Amicus briefs are on the rise. Ninety-eight percent of Supreme Court cases now have amicus filings; over 800 briefs are filed each term and the marquee cases attract briefs in the triple digits. This is an 800% increase from the 1950s and a 95% increase from 1995. To put things in perspective historically, amici averaged roughly one brief per case in the 1950s and about five briefs per case in the 1990s. By contrast, in the 2015 Obergefell case the number of amicus briefs reached 147 (a record-breaker) and the health care case two years earlier (NFIB v. Sebelius) had 136 amicus briefs on the docket. For the sake of comparison, consider that Roe v. Wade had twenty-three amicus briefs. In Brown v. Board of Education, there were only six. In Lochner v. New York that number was zero.
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Perhaps it is not surprising, therefore, that the Justices cite these briefs to support their factual claims … increasingly regularly. In my 2014 study on the subject I found that one in every five citations to amicus briefs by the Justices were used to support a factual assertion. The Justices seem to have only picked up the pace since then. A 2020 study of amicus citations found citations to amici in 65 percent of the Court’s cases (a record), and “most of all” the
