Washington – Not long ago, a law professor at Harvard received a routine request. Would he add his name to a brief from a group of law professors urging a federal court to uphold the health care reform law?
The professor, Richard H. Fallon Jr., said he would not, and his assessment of what he had been asked to sign was cutting.
“Its argumentation fell within the bounds of what lawyers could permissibly say in a brief,” he wrote in a provocative draft essay that has been circulating in the legal academy. But the brief’s presentation of the historical evidence, he said, “was not nuanced or balanced.”
“A purportedly scholarly book or article that asserted its claims without further qualification,” he wrote, “would attract derision as one-sided if not misleading.”
The health care brief was just an example of a larger problem, Fallon wrote, of role confusion between scholarship and advocacy. “Many scholars’ briefs are actually not very scholarly,” he wrote.
In major cases, the Supreme Court receives stacks of friend-of-the-court filings, called amicus briefs. It helps for them to have an angle: The justices may be more likely to read a brief from a group of scholars with specialized expertise than one from, say, a trade group. That, along with an understandable desire by some law professors to help shape the law, may explain the explosion in the filing of such briefs.
In the term that ended in June, the Supreme Court decided about 80 cases after briefing and argument. By Fallon’s count, it received 56 briefs from groups of law professors.
In the term that ended in 1986, by contrast, the court decided twice as many cases, but it received only three such briefs.
Barry Friedman, the law professor at New York University who asked Fallon to join the health care brief, said his colleague was “exactly right” as a general matter in his criticism of law professors’ briefs.
“I’m completely in sympathy with the broader argument he develops,” Friedman said. “I get constant requests to write them and to sign them. There is often more attention to the issue than the analysis.”
But that was not the case with the health care brief, Friedman said. “I actually happen to possess great expertise on this subject,” he said. “On his analysis of this particular issue, I think Dick is wrong.”
In his essay, Fallon discussed a second brief he had declined to join. It concerned “a highly complex question of federal jurisdiction over a habeas corpus petition filed by a prison inmate” and was written by Michael C. Dorf, a law professor at Cornell.
Fallon said the brief was in all likelihood “exemplary in all respects.” But he said he would not sign that one, either, on the ground that he had not done the required reading.
“Of the dozens of Supreme Court decisions to which the brief referred, there were some that I know well, and others I recall only hazily,” he wrote. “The brief also cited at least nine Supreme Court cases that I cannot remember ever having read at all, and 12 lower court decisions that I know I have never read.”
“It seems pertinent,” he added, “that my instinctive sympathy for the asserted position – and thus my impulse to want to sign – had ideologically based foundations.”
In an email, Dorf said that he, too, had long been suspicious that “law professor briefs were attempting to leverage scholarly reputations for political/ideological ends.”
“I prefer not to be asked to sign such briefs, but because I do sign some, I worry that not signing may be taken as disagreement,” he wrote. “Finding it harder than Dick does to say no, I cannot afford to be as scrupulous as he. I admire him on both counts, but I guess I’m just weak.”
Dorf, who did sign the health care brief, set out his standards. He will join briefs for groups of law professors if he trusts their organizer or author, cares about the issue and agrees with “the overall thrust of the argument.”
This entire discussion may be, for want of a better word, academic. There is no particular reason to think that briefs from law professors have much impact.
In an interview in September, Justice John Paul Stevens, who retired last year, said that “normally I didn’t even read amicus briefs.”
“That was one of the tasks I assigned to my law clerks,” he said. “Their job was, if they thought an amicus brief really should be read, they’d pull them out for me and then I’d look at them.”
Justice Antonin Scalia said almost the same thing at the Chicago-Kent College of Law last month, but more colorfully. “I do not read all amicus briefs,” he said, according to notes of the remarks taken by Abdon M. Pallasch of The Chicago Sun-Times. “My law clerks read all amicus briefs.”
“If there’s one that has a hidden truffle in there somewhere,” he said, “they call it to my attention.”
When the U.S. Court of Appeals for the District of Columbia Circuit upheld the health care law last week, it did not cite the brief that Friedman and Dorf had submitted. But it did cite a scholarly article published in August in The California Law Review – by Fallon.