New York Times

WASHINGTON — As in all big Supreme Court cases these days, there were scores of supporting briefs filed in Wednesday’s showdown over a restrictive Texas abortion law.

These friend-of-the-court filings — lawyers call them “amicus curiae briefs” — were diverse, but they were not random. They were the product of a coordinated campaign of judicial lobbying called “the amicus machine,” according to a new study based on interviews with more than 20 leading Supreme Court lawyers.

The teams preparing for major Supreme Court cases must now include two new members, the study said: the amicus wrangler and the amicus whisperer.

“The wrangler is gathering the troops,” said Allison Orr Larsen, a professor at William and Mary Law School and one of the study’s authors, “and the whisperer is coordinating the message.”

(Kathleen M. Sullivan coined the first term, and Pamela S. Karlan the second. Both argue often before the Supreme Court and possess a gift for vivid language.)

The wranglers and whisperers must do several things at once, Professor Larsen said.

“You can think of it as an orchestra and a conductor,” she said. “There are three different elements, and you have to match them up. There’s the message that you want the justices to hear, the person they need to hear it from and the lawyer who can translate into the correct language.”

The study, prepared with Neal Devins, also a law professor at William and Mary, will be published in the Virginia Law Review.

There was a time when amicus briefs were isolated and disinterested efforts to help judges navigate difficult legal and factual issues. No more. People who claim to be friends of the court are now, almost without exception, actually friends of one party in the case.

“The vast majority of amicus curiae briefs are filed by allies of litigants and duplicate the arguments made in the litigants’ briefs, in effect merely extending the length of the litigant’s brief,” Judge Richard A. Posner of the federal appeals court in Chicago has written. “Such amicus briefs should not be allowed. They are an abuse.”

But they are here to stay, and these days the parties in major cases select and advise their friends with exquisite care.

“We tried to decide what messages, what points, we wanted the court to hear and which messengers should make those points,” Brigitte Amiri, a lawyer with the American Civil Liberties Union, said of the behind-the-scenes wrangling and whispering in Burwell v. Hobby Lobby Stores, a 2014 contraception-coverage case, at Columbia Law School a few months before the decision landed. “We read all of the drafts of the briefs that we knew about to try to make sure that duplication was limited, and that we were consistent on our points.”

Writing in the Harvard Law Review about the wrangling and whispering that went into a 2006 case concerning the detention center in Guantánamo Bay, Cuba, Neal K. Katyal said the point was “to ensure that the court was hearing only from a far-flung and diverse set of amici, represented by the best advocates, with the most affected clients, with the most expertise on the issues, and with no repetition.”

The Supreme Court requires parties filing supporting briefs to disclose “whether counsel for a party authored the brief in whole or in part.”

Professor Devins said those words left room for interpretation. “Everybody is aware of the rule and is sensitive to crossing the line,” he said, “but there is a willingness on the part of some of the attorneys to go fairly far in not necessarily line editing but in making fairly concrete suggestions about whether an amicus brief is helpful or not.”

One unnamed lawyer cited in the study said that comment bubbles were acceptable but that redlined sentences were not.

More than 80 supporting briefs were filed in the abortion case on Wednesday, Whole Woman’s Health v. Hellerstedt, No. 15-274, a modest number by some standards. The record is held by the same-sex marriage case last year, at 147, according to statistics kept by Anthony J. Franze andR. Reeves Anderson, lawyers at Arnold & Porter. The first Affordable Care Act case, in 2012, featured 136.

By contrast, the new study says, 23 amicus briefs were filed in Roe v. Wade, the 1973 decision that established a constitutional right to abortion. In 1954, when the Supreme Court banned racial segregation in public schools in Brown v. Board of Education, the justices made do with six amicus briefs.

On balance, the study concludes, the amicus machine is a force for good, giving the justices access to valuable information and serving as a counterweight to the expert lawyers who represent the federal government.

All of this assumes that the justices pay attention to supporting briefs. Mostly, though, they do not.

“Normally I didn’t even read amicus briefs,” Justice John Paul Stevens told me in 2011, a year after he retired.

“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, who died last month, said something similar in 2011 at Chicago-Kent College of Law, but more pungently.

“My law clerks read all amicus briefs,” he said. “If there’s one that has a hidden truffle in there somewhere, they call it to my attention.”