Texas Review of Law & Politics, Volume 20, Number 1, Fall 2015 Page: 85
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Congressional Participation as Amicus Curiae
Burger Court** 67.5%
1969-1986
Rehnquist Court** 83.0%
1986-1997
Rehnquist Court*** 91.6%
1998-2004
*Data compiled by Nathan Hackman. Cited in Karen O'Connor & Lee Epstein, AMICUS
PARTICIPATION IN U.S. SUPREME COURT LITIGATION: AN APPRAISAL OF HAKMAN'S 'FOLKLORE',
16 LAW AND SOCIETY REV. 316 (1981-82).
**Data compiled byJudithanne Scourfield McLauchlan. SeeSCOURFIELD MCLAUCHLAN,
supra note 19, at 26.
***Data compiled byJudithanne Scourfield McLauchlan, Thomas Gay, Ryan Nevel, Steve
Lapinski, and George Meehan.
C. Research Design and Methodology
Whether congressional participation was also increasing was one
of the questions the initial study sought to answer. The specific
objectives were to determine how often members of Congress
participate as amici, what types of cases they participate in, what
their motivation was, and whether their efforts influenced Supreme
Court decision-making.29 This was done through the use of a
longitudinal study examining briefs in Supreme Court cases; a
qualitative study involving interviews of current and former
members of Congress, their staff, and Supreme Court law clerks; an
examination of briefs to determine how often Justices refer to
congressional amicus briefs in their opinions; the formulation of a
win/loss record for congressional amicus briefs; and a review of the
bench memos of Justice Thurgood Marshall.30 The focus of the
current effort was to update the data for Octobei Terms 1998
through 2004, closing out the tenure of Chief Justice William
Rehnquist. A similar longitudinal study was initiated involving the
cases in those seven terms. Citations of congressional amicus briefs
were noted, as well as the type of case, and whether the Court's
decision represented a win or a loss.31
There are some notable differences between the original and the
current study that should be acknowledged. Previously, U.S. Law
29. Id. at 2.
30. Id. at 16.
31. We reviewed all amicus curiae briefs filed between the October Terms of 1998 and
2004 to identify those joined by members of Congress. The authors wish to thank the law
library of Florida A&M University for access to the Supreme Court Records and Briefs on
microfiche.No. 1
85
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University of Texas at Austin. School of Law. Texas Review of Law & Politics, Volume 20, Number 1, Fall 2015, periodical, September 2015; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth839390/m1/99/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.