- The Washington Times - Monday, March 3, 2003

Not since the Supreme Court received its first "friend of the court" brief in 1821 have so many organizations filed so many words on one topic as they did Feb. 19 about the University of Michigan's affirmative-action case.
When the Feb. 19 deadline passed, 66 amicus curiae briefs by about 300 organizations had been filed in support of the university's admissions policy of giving preferences to blacks, Hispanics and American Indians. Four briefs took neutral stances, and 11 briefs argued that the practice is unconstitutional.
Studies supporting the university argue that education experts should decide the composition of student bodies and that lower levels of minority achievement stem from such factors as cultural differences and testing methods.
The 81 filings broke the record of 78 amicus curiae briefs submitted on the 1989 decision in Webster v. Reproductive Health Services. In that case, 46 briefs sided with the state of Missouri and 32 were on the pro-choice side. A 1997 assisted-suicide case spurred the third-largest number of amicus briefs: 60.
Although University of Michigan officials heavily publicized the issue in the likelihood that their case would set the record, the huge imbalance on the side of the university could backfire, say leading researchers on the influence of amicus briefs at the high court.
"Although small disparities of amicus support (one or two briefs to none) may be associated with increased success for the supported party, larger disparities (three briefs or more to none) … may possibly even be counterproductive," law professors Joseph D. Kearney and Thomas W. Merrill said in a law-review article based on 6,000 cases.
"Large disparities … cannot be shown to have any impact; indeed, they appear often to work against the interests of the supported party," said the report by Mr. Kearney, dean of Marquette University Law School, and Mr. Merrill, of Northwestern University. They found 34 Supreme Court cases that received more than 19 amicus briefs.
The justices may choose not to read the torrent of briefs in the Michigan case and are not bound to follow the conflicting advice offered by education and civil rights interest groups, the Bush administration, House and Senate groups, a coalition of 13,000 law students, military specialists, and 65 Fortune 500 corporations.
Court opinions occasionally note that an amicus brief has pointed out the importance of one or another issue, but rarely have justices said whether submissions adhere to Supreme Court Rule 37, which restricts briefs to "relevant matter not already brought to its attention by the parties."
Judge Richard Posner of the 7th U.S. Circuit Court of Appeals says that in most cases amicus briefs largely repeat facts and legal arguments put forth by lawyers.
In his dissent to the June 13, 1996, decision extending to a police department social worker privileges accorded to a psychotherapist, Justice Antonin Scalia appeared to question the motives of groups filing as friend of the court.
"In its consideration of this case, the court was the beneficiary of no fewer than 14 amicus briefs," he said, all of which sided with the social worker and none with the police officer involved in the case.
"That is no surprise. There is no self-interested organization out there devoted to pursuit of the truth in the federal courts," Justice Scalia wrote.
Although amicus briefs are filed in 85 percent of high court cases, it is hard to divine the value justices place in them except when the filings are from the solicitor general and, to a lesser extent, from states.
A 1987 study by Gregg Ivers and Karen O'Connor said groups such as the American Civil Liberties Union and Americans for Effective Law Enforcement enjoy some success with friend of the court briefs in criminal cases "but only when the court was ideologically predisposed to reach the outcomes they favored."
The court has reserved the morning session April 1 to hear arguments in the lawsuit by white students over the system of racial preferences at the tax-supported University of Michigan.
Grade-point average remains the key element on the 150-point scale by which the university grades applications, but the system gives 20 points for three minority groups (excluding Asian-Americans) and an additional 20 points for "socioeconomic disadvantage." It counts a perfect SAT as worth 12 points.

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