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Ready, Aim, Fire: 250 Members of the House, 55 Senators, and 1 Vice President Agree on Something that Does Not Matter

- February 11, 2008

On Friday, 55 United States Senators and 250 members of the House filed an amicus brief in District of Columbia v. Heller. The amicus brief urged the Supreme Court to support a lower court decision overturning Washington D.C.’s ban on handguns. The lower court opinion raised questions about the appropriateness of any gun control legislation. The Bush administration’s Solicitor General filed a brief arguing that the categorical approach of the lower court could endanger federal gun control measures. The Bush administration urged the Court to remand the case to see if the District’s ban was “unreasonable.”

Vice-President Cheney broke with the Bush administration and signed the congressional brief as the “President of the Senate.” Having the Vice-President sign a brief taking a position that is different than the administration’s is unprecedented. Given the vice-president’s well known tendency to shoot lawyers (here, more, more, more, more, don’t stop), it is also worrisome to those of us who live in the city with the nation’s highest per capita rate of lawyers (here).

Although the work of numerous political scientists (e.g. Richard Pacelle’s book Between Law & Politics: The Solicitor General and the Structuring of Race, Gender, and Reproductive Rights Litigation; Kevin McGuire book The Supreme Court Bar: Legal Elites in the Washington Community; an article I coauthored with Mike Bailey and Brian Kamoie; and an article by Jeffrey Segal) have clearly demonstrated that briefs by the solicitor general do influence court decision-making, the role that congressional amici briefs play is not as clear.

In her recently published book, Judithanne Scourfield McLauchlan found congressional amicus briefs to have a virtually non-existent impact on Court decision-making. She found that congressional amicus briefs were cited by the justices in just 10% of the cases where they were filed. Likewise, the position embraced by the amicus brief when there were amicus brief on only one side prevailed in only 54% of the cases. Her findings are similar to those that Rachel Paine Caufield found in her dissertation and presented at the 2002 annual meeting of the Midwest Political Science Association. Presumably, a monkey would have a 50% success rate. I should note that I compare members of Congress to monkeys because this is the monkey cage and one gets bonus points for employing the word monkey, not because I view the typical member of Congress as a banana hungry ape who refused to adopt an amendment that would prevent NASA from using Rhesus monkeys in space experiments.

If briefs don’t matter, why file? Rorie Spill Solberg and Eric Heberlig demonstrate in their 2004 gated article that members of Congress cosign onto amicus briefs as a mechanism for currying favor with their constituents and interested interest groups. In other words, position taking and grand-standing is alive and well on Capitol Hill. Of course, if the Court overturns the District’s ban and prohibits the district from banning hand-guns and automatic weapons, it is not clear what else will be alive and well in the Capitol.