How tutorial briefs form Supreme Court docket choices

Empirical SCOTUS is a recurring sequence by Adam Feldman that appears at Supreme Court docket knowledge, primarily within the type of opinions and oral arguments, to offer insights into the justices’ choice making and what we will anticipate from the court docket sooner or later.

On June 24, 2022, the Supreme Court docket issued its choice in Dobbs v. Jackson Women’s Health Organization, overturning the court docket’s recognition of a constitutional proper to an abortion. To justify their opinions in Dobbs, the justices cited six completely different briefs submitted by students. This intense marshaling of educational experience exemplifies a broader transformation in Supreme Court docket follow: Justices more and more flip to such briefs not merely for doctrinal assist however for historic practices, empirical claims, and constitutional evaluation.

Students’ briefs occupy a definite area. In contrast to celebration briefs, which advance partisan positions, such briefs purport to supply disinterested experience with tutorial authority that working towards attorneys can’t replicate. However their increasing affect raises questions on whether or not these briefs genuinely inform constitutional interpretation or merely present scholarly backing for predetermined conclusions.

This text examines an authentic dataset of 103 scholar briefs and over 2,300 particular person students cited by the Supreme Court docket between the 2015-16 and 2024-25 phrases to map the panorama of educational affect on up to date Supreme Court docket decision-making and to look at what briefs matter most to the justices.

The instances that draw students

Let’s begin with the instances themselves. The distribution of such briefs’ citations throughout instances is remarkably uneven. Dobbs stands as a rare outlier with six cited briefs. Three instances – Students for Fair Admissions v. Harvard (on affirmative motion in faculty), Jesner v. Arab Bank (on company legal responsibility), and New York State Pistol & Rifle Association v. Bruen (on the suitable to hold beneath the Second Modification) – every drew 4 cited briefs. Under this, quite a few instances cite two scholar briefs every, spanning numerous doctrinal areas from habeas corpus to mental property.

This means that the quotation of such briefs stays the exception somewhat than the rule, though students’ briefs are being cited with rising prominence, particularly in main civil liberties issues which are likely to even be the court docket’s most publicized instances.

As for subject material, Constitutional legislation (unsurprisingly) emerges because the dominant class, with twenty briefs – almost one-fifth of all citations. Inside constitutional legislation, basic constitutional questions account for twenty briefs, First Modification points for eleven briefs, Second Modification questions for eight briefs, and federal jurisdiction, habeas corpus, the equal safety clause, and the institution clause every generated 4 cited briefs. The clustering across the First and Second Amendments suggests ongoing doctrinal growth the place originalist and dwelling constitutionalist approaches conflict, making tutorial work notably worthwhile there.

Past constitutional legislation, felony legislation leads the non-constitutional fields with eight briefs, adopted intently by civil process and administrative legislation (six briefs every). Sentencing and punishment points generated 5 cited briefs.

A notable subset addresses identity-based authorized points and the rights of particular populations. Right here, gender and girls’s points had 4 cited briefs. Stateless individuals, faith as id, race (particularly Black students’ views), LGBTQ populations, and kids’s rights every garnered two cited briefs. These comparatively small numbers – in comparison with basic constitutional legislation briefs – means that identity-based experience stays supplemental somewhat than central to judicial reasoning.

Historic experience has additionally come to play an more and more distinguished function. Seven cited briefs got here from historians or history-related disciplines, with three briefs combining historic and authorized evaluation. This displays the court docket’s up to date emphasis on authentic public that means and historic custom in instances like Bruen, which articulated a “historical past and custom” check, and  Dobbs, which grounded its evaluation in Nineteenth-century abortion statutes. Historic scholarship now instantly shapes constitutional doctrine.

Lastly, the court docket more and more cites briefs containing empirical and interdisciplinary views.

Right here, the sector of economics leads decisively with seven cited briefs, adopted by political science and empirical authorized research (six briefs every), psychology/psychological well being (4 briefs), linguistics and corpus linguistics (4 briefs), and public well being (three citations). The presence of corpus linguistics briefs – utilizing massive textual content databases to find out phrases’ meanings – demonstrates the court docket’s willingness to embrace novel methodologies for interpretation. And the utilization of such briefs is simply prone to intensify given the present court docket’s flip in direction of textualism.

The geography of elite authorized academia

One other side value contemplating is what faculties are producing probably the most scholarship cited by the court docket.

As charted above, Harvard Regulation Faculties’ scholarship is cited in a number of briefs throughout completely different disputes. Stanford Regulation College, Berkeley, UCLA, Duke College College of Regulation, Columbia, Georgetown College Regulation Heart, NYU College of Regulation, College of Chicago Regulation College, Penn, and College of Virginia College of Regulation likewise generated repeated citations throughout completely different doctrinal contexts. And whereas the focus of elite establishments is important, the presence of tons of of faculties suggests significant participation past the top-ranked ones.

Probably the most influential students

Particular person students additionally range dramatically briefly quotation frequency. Twenty-eight students appeared as signatories on three or extra cited briefs:

The highest cited scholar, with 5 briefs, was Darrell A. H. Miller from Duke Regulation, who concentrated primarily on the Second Modification. Two professors filed in 4 cited briefs: William W. Berry III (College of Mississippi College of Regulation) in felony legislation, and Joseph Blocher (Duke Regulation), additionally primarily in Second Modification instances.

Many ceaselessly cited students maintain appointments at elite establishments, though a number of distinguished entries hale from decrease tiered faculties.

A few of these students concentrate on specific constitutional domains (the Second Modification, federalism), whereas others contribute throughout a number of fields. Mixed JD/PhD credentials additionally seem ceaselessly amongst prime students, suggesting that interdisciplinary coaching enhances one’s affect. And most of those students are senior, reflecting each gathered experience and established skilled networks facilitating temporary coordination.

The variety of students signing every cited temporary additional varies dramatically:

Dobbs stands far above all different instances with 838 whole scholar signatories throughout its cited briefs – a rare mobilization of educational opinion. Kahler v. Kansas, which concerned the madness protection, drew 288 signatories, whereas Bostock v. Clayton County, the landmark LGBTQ employment discrimination case, garnered 100 signatures.

Implications and open questions

So what does this inform us about authorized academia and the court docket? Initially, the information reveal a court docket more and more comfy turning to tutorial experience throughout a various vary of fields, with specific reliance on constitutional and felony legislation. Second, as for the briefs themselves, elite legislation faculties dominate, with a small group of establishments and students showing repeatedly. Lastly, the justices present a willingness to interact with historic scholarship and empirical proof – when the instances demand it.

After all, these patterns increase questions on precise affect versus mere quotation. Justices might cite students’ briefs not as a result of they modified any minds, however as a result of they supply authoritative assist for conclusions already reached. Particularly, the focus at elite establishments with established Supreme Court docket networks raises questions on whether or not cited briefs signify real scholarly consensus or fastidiously curated views aligned with the litigants’ pursuits. The reply doubtless varies by case, justice, and experience kind – however the place precisely the justices are getting their info from offers an necessary begin.