Cato Weighs In With the Court – Cert.-Stage Amicus Edition

Adam Chandler, a Yale Law grad who recently completed a clerkship with Judge Patrick E. Higginbotham on the U.S. Court of Appeals for the Fifth Circuit, posted a SCOTUSblog piece this afternoon entitled “Cert.-stage amicus All-Stars: Where are they now?” Guess what? Cato’s number 4 on the list, right behind the U.S. Chamber of Commerce, the National Association of Criminal Defense Lawyers, and our friends out at the Pacific Legal Foundation – with a very respectable success rate of 22.2 percent.

Five years ago, when Chandler last did these rankings, Cato wasn’t even on the chart. That’s when Ilya Shapiro joined us. Say no more. But I will. He’s done a bang-up job with Cato’s amicus program.

The importance of filing Supreme Court briefs at the cert stage cannot be overstated. That’s the time when the Court makes its up-or-down decision about whether even to take a case, and hence the time at which arguments can be made about the importance of the issues at stake and the broader implications. We at the Center for Constitutional Studies have always taken the long view, grounded in the Constitution’s First Principles, especially as they underpin the limited constitutional government the Framers envisioned.

Commenting on the ideological aspects of these developments (where “conservative” and “libertarian” are largely interchangeable), Chandler writes:

Overall, the ideological cast of the new entrants is more conservative, anti-regulatory, and pro-business than that of those they replaced. To varying degrees, all seven of the new entrants have conservative profiles, whereas several of those left off the list this year, like the Society of Professional Journalists and the National League of Cities, have no obvious ideological bent. Five years ago, I wrote that “the list of top amici is dominated by pro-business and anti-regulatory groups—such groups hold over half the slots in the top sixteen.” Now they hold over three-quarters.

And he adds: “While the conservative groups have stepped up their game, the liberals are still nowhere to be found.” Part of the reason for this trend is of course the ideological cast of the Court itself. But that’s not the whole story – after all, it takes only four votes for certiorari to be granted, and for the most part there are four reliably liberal votes on the Court. Just as important is a change in the constitutional debate. And we’ve played our part in bringing that change about. In fact, in another month or so you’ll find a symposium in the Chapman Law Review on the origins and character of the modern libertarian legal movement. Stay tuned for more on that.