Over at Slate, Adam Chandler has an interesting essay on the use of Supreme Court amicus briefs at the cert stage. (In English, those are written legal arguments filed by “friends of the court” — that is, folks other than the litigants themselves — on whether the Supreme Court should take a case.)
By way of background, such briefs are almost always in support of the petition. They are designed to get a law clerk’s attention and make the dispute appear more nationally important, and therefore increase the chances the Court will grant cert. In particular, amicus briefs make the stack of briefs that the clerk receives more formidable: They send a message to the clerk writing the pool memo that says “this one is important and probably has a chance, so set aside some time for it.” Plus, amicus briefs are identified in pool memos: Their arguments are usually summarized in in a short paragraph after the arguments of the parties. For these reasons, cert-stage amcius briefs can increase the chances that the Court will “flag” the petition as something unusually important. Almost no one files amicus briefs against certiorari, as it would very likely backfire: Such a brief would tell the Court that you think the case is so important that you’ve written in to keep the Justices out, which only makes them more interested.
Some stats from the essay:
Between May 2004 and August 2007, nearly 1,000 private organizations filed cert-stage briefs. Only a few make it a habit