Persuading the Supreme Court

The Significance of Briefs in Judicial Decision-Making

Morgan L. W. Hazelton and Rachael K. Hinkle

Each year the public, media, and government wait in anticipation for the Supreme Court to announce major decisions. These opinions have shaped legal policy in areas as important as healthcare, marriage, abortion, and immigration. It is not surprising that parties and outside individuals and interest groups invest an estimated $25 million to $50 million a year to produce roughly one thousand amicus briefs to communicate information to the justices, seeking to impact these rulings. Despite the importance of the Court and the information it receives, many questions remain unanswered regarding the production of such information and its relationship to the Court’s decisions. Persuading the Supreme Court leverages the very written arguments submitted to the Court to shed light on both their construction and impact.

Drawing on more than 25,000 party and amicus briefs filed between 1984 and 2015 and the text of the related court opinions, as well as interviews with former Supreme Court clerks and attorneys who have prepared and filed briefs before the Supreme Court, Morgan Hazelton and Rachael Hinkle have shed light on one of the more mysterious and consequential features of Supreme Court decision-making. Persuading the Supreme Court offers new evidence that the resource advantage enjoyed by some parties likely stems from both the ability of their experienced attorneys to craft excellent briefs and their reputations with the justices. The analyses also reveal that information operates differently in terms of influencing who wins and what policy is announced.

Using those original interviews and quantitative analyses of a rich original dataset of tens of thousands of briefs, with measures built using sophisticated natural language processing tools, Hazelton and Hinkle investigate the factors that influence what information litigants and their attorneys provide to the Supreme Court and what the justices and their clerks do with that information in deciding cases that set legal policy for the entire country.

“Litigant briefs are the most important mechanism through which attorneys attempt to guide or persuade justices to their desired case outcomes and opinion rationales. Hazelton and Hinkle’s efforts here provide an exceptionally comprehensive accounting both of how the content of these briefs comes to be as well as how such content subsequently shapes judicial behavior on the Supreme Court. A true boon to our field, this book will influence all future studies on briefs and attorneys in the Court as well as any appellate court in the United States and beyond. Buy it, read it, cite it!”

—Ryan C. Black, professor of political science, Michigan State University

About the Author

Morgan L. W. Hazelton is an associate professor of political science and law (by courtesy) at Saint Louis University.

Rachael K. Hinkle is an associate professor of political science at the University at Buffalo, SUNY.