Briefs may be the most important tool in a lawyer’s arsenal in the Supreme Court. In interviews with legal writing expert Bryan Garner the justices said as much. Chief Justice Roberts for instance said, “The oral argument is the tip of the iceberg — the most visible part of the process — but the briefs are more important. I don’t think anybody would dispute that.” When later asked, “When you approach an oral argument as a judge, to what extent do you have a tentative vote in mind? Is there a kind of rebuttable presumption?” Roberts responded, “It really varies on the case. Some cases seem clear. You look at the briefs, and you’re just not persuaded by one side, and you are by another, so you do go in with kind of . . . I’m kind of leaning this way. Usually, you’ve got concerns. I’m leaning this way, but I need a better answer to this problem.” Justice Ginsburg agreed, “Of the two components of the presentation of a case, the brief is ever so much more important. It’s what we start with; it’s what we go back to. The oral argument is fleeting and very concentrated, just a half hour per side.” Here we get the picture that briefs are used as tools going into oral argument. Justice Thomas, the most reticent of the justices at oral argument agreed, “[reading briefs is a] big part of our job. When the case is new, you want to learn what it’s about, and there’s nothing better than a well-written brief, and it kind of carries you on.”
How are these tools used? Although much of the uses are justice specific we see some defining similarities. Some briefs are more important than others for particular justices. Some provide points that justices agree with. Some provide points that the justices oppose. Some justices make more use of briefs as substance for their questions and ultimately to drive points home in their opinions, while some justices base their premises and conclusions on other aspects from the cases.
Although justices read briefs prior to oral argument, oral argument is the first place where we get to see and hear the justices’ reactions to the briefs. The differential with which the justices engage with the briefs at oral argument speaks to the the relative importance of the briefs to the justices in designing how to spend their limited oral argument time. The first graph tracks the number of individual talking turns across oral argument this term where each justice mentions a brief in his or her question.
Interestingly three justices on the right of the Court asked the most questions referencing briefs. Barrett also did so in limited appearances since she was not confirmed to the Court until oral argument season had already gotten underway.
Another way to look at these data is by individual oral argument. The next graph breaks the data down in this manner also looking at how many references each justice had to the briefs in each argument.
The most references to briefs in an argument came in Americans for Prosperity v. Bonta with eleven followed by National Association of Broadcasters v. Prometheus Radio Project and Brnovich v. Democratic National Committee each with nine. Justice Kavanaugh led all justices in citing to the briefs at least three times in an argument with four times and also had the only argument with four references to the briefs (he did so in Minerva Surgical v. Hologic).
As the justices put different emphasizes on briefs in opinions and oral argument we can expect that different justices cite briefs more often in opinions than the ones that cited them more often in oral arguments. The next graph tracks citations to briefs in opinions so far this term breaking the data down by type of opinion.
Here we see the more liberal justices Breyer, Kagan, and Sotomayor citing briefs more often than the conservative justices. While Justice Breyer cited briefs mainly in his dissents, Justice Kagan cited briefs only in majority opinions, and Justice Sotomayor had a more balanced approach of citing briefs across both opinion types as well as in her concurrences.
Drilling into these opinions a bit, we also see an interesting tendency of justices citing party briefs in cases where they vote against the party who filed the brief referenced. The Court reversed the lower court decisions in CIC Services, LLC v. Internal Revenue Service, Salinas v. U.S. Railroad Retirement Board, and in AMG Capital Management, LLC v. Federal Trade Commission and cited the respondents’ main briefs on the merits more than the petitioners’ briefs in each of these cases (this trend repeats across several other cases as well).
This tactic of arguing against the brief cited is on display in Justice Breyer’s opinion in AMG Capital. Here he wrote, “The Commission argues that these cases consequently support the proposition that the traditional equitable “authority to grant an ‘injunction’ includes the power to grant restorative monetary remedies.” Brief for Respondent 21. The problem for the Commission is that we did not in these two cases purport to set forth a universal rule of interpretation.”
We can also look at the opinions by citations. Here the graphs track the type of brief (amicus, party, or other — which means a brief from another case than the one decided) cited in each case.
The case with the most cites at oral argument, Americans for Prosperity, has yet to be decided. Still, if the justices’ citation practices in cases so far this term give us some insight, we might expect to see the justices cite briefs more in different cases in oral arguments than in their opinions. The two cases with the most cites to briefs so far this term are Trump v. New York and Van Buren v. United States. More main party briefs were cited in the Trump case while amicus briefs made up a greater percentage of cites in Van Buren. The only cases with cites to amicus briefs but not directly to the main party briefs were Google v. Oracle and Uzuegbunam v. Preczewski.
While main party briefs give the justices fodder to argue for or (more often in this analysis) against, amicus briefs provide relevant information to the justices often not presented in the main party briefs. For instance Justice Breyer cited the R Street Institute’s amicus briefs in Google v. Oracle for the proposition that, “Some of the amici refer to what Google did as ‘reimplementation,’ defined as the ‘building of a system . . . that repurposes the same words and syntaxes’ of an existing system—in this case so that programmers who had learned an existing system could put their basic skills to use in a new one.”
Some amicus briefs are cited more frequently than others. In a few rare occasions this term amicus briefs were cited more than once in cases, highlighting the importance of the briefs to the justices. These instances include cites to the R Street Institute’s brief in Google v. Oracle. The following graph shows these examples.
Two amicus briefs were cited three times in opinions this term — Orin Kerr’s brief in Van Buren, and the National Association of Criminal Defense Lawyers’ brief in Breyer’s dissenting opinion in Pereida v. Wilkinson.
This informational role for amicus briefs is apparent in Justice Barrett’s citations to Orin Kerr’s brief in Van Buren as is evident in this instance: “And indeed, numerous amici explain why the Government’s reading of subsection (a)(2) would do just that— criminalize everything from embellishing an online-dating profile to using a pseudonym on Facebook. See Brief for Orin Kerr as Amicus Curiae 10–11.”
With several opinions still yet to be decided, the data paints an incomplete picture of this term. Still, we see trends across cases, and with oral arguments complete, we get a fuller picture of briefs role in this practice. Even with incomplete data we see interesting distinctions between cases and between justices. With Justice Barrett’s high volume of citations to briefs in both her opinions and in oral arguments, we may expect briefs to play a large role in her decision making and this will be an interesting addition to the Court moving forward.
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On Twitter: @AdamSFeldman