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HOW DO JUDGES RELATE TO INTERVENERS?

Although judges may be influenced by the direct litigants in an appeal, we saw in Figures 7-2 and 7-3 that there is another important player before the courts— interveners. Do judges react in the same way to interveners as they do to the litigants? Judges may rely on interveners to increase the accuracy of their decision, possibly because the intervener brings greater information and resources to the resolution of the dispute. Alternatively, they may see interveners more as a signal of the nature of the outcome, and tend to favor interveners who align with their own policy preferences.

Prior studies point toward the accuracy story. One way to see such an effect would be for judges to vote against their apparent preferences in cases involving interveners. In Canada, for example, conservative interveners make for a more conservative judgment, whereas liberal interveners make for a liberal judgment, though conservative interveners have a greater effect.[1] The judges appear to primarily take information from the interveners as “in the presence of interveners, judges in some cases vote in a direction different than would be predicted from general indicators of their ideology"[2]

Similarly, in the US Supreme Court, Collins found that “amicus briefs serve to attenuate the justices’ reliance on their attitudes ... leading to more variable behavior", to the point that “amicus briefs are the single strongest predictor of increased variance in judicial decision making"[3] Kearney and Merrill, too, find that amicus briefs affected voting patterns particularly during the Warren Court and the Burger Court, though the increasing number of such briefs may have reduced their effectiveness in later periods.[4] Both studies conclude that judges look to interveners for the provision of information.[3] If judges were basing their votes on the desire for affiliation with a particular intervener’s ideological position, interveners would not attenuate the judges’ attitudinal voting; rather, judges would merely vote in favor of the party supported by like-minded interveners.[3]

If the accuracy story holds for interveners, interveners should mitigate the disadvantage of the relatively under-resourced party—having an intervener as an ally should increase the range of arguments and bring added experience, and also may help allay the costs of the appeal.[7] Kearney and Merrill propose an informational story, namely that interveners can make up for inexperienced counsel, insofar as amicus briefs provide legal arguments that a more experienced lawyer could have offered independently.[8] Not all uS studies have found amicus briefs to have an influence on litigant success. Songer and Sheehan conclude that litigants tend not to fare better when supported by briefs; in fact, some even fare worse.[9] One possible reason for these findings is that the authors do not distinguish between types of interveners. Certain interveners, such as the solicitor general, are much more successful than others.

An alternative indicator of an influence of interveners is the dissent rate. As we discussed earlier, interveners may push judges to more extreme positions, making it harder to find common ground. Songer et al. found that interveners decreased the odds of a unanimous decision at the Supreme Court of Canada, but the effect was only slight, and was a less meaningful predictor of lack of unanimity than the presence of constitutional issues or statutory interpreta- tion.[10] Interestingly, in the uK, Hanretty found that interveners lead to less divided voting, also suggesting an accuracy story that the presence of interveners “reduces complexity by accentuating different sides to the debate.”[11]

When we look across high courts in the 1970s through the 2000s, we find that judges on a number of high courts had a modestly higher dissent rate in the presence of interveners. In Canada, the uK, and Australia, judges were about 2-3 percent more likely to dissent if there was at least one intervener involved in the case, but the presence of an intervener did not appear to influence the dissent rate in the United States.[12] Of course, it is difficult to know if something about the interveners’ submissions increased the likelihood that a judge would dissent, or whether more controversial cases (those so more likely to be divisive) were more likely to attract interveners. We did, however, control for the area of law (such as whether the case was a civil rights case) in looking for an influence of interveners, which may in part control for the nature of the case.

Interveners may only be persuasive to a certain point. One party may gain an advantage by having one or two more briefs than another, but a greater disparity will lead to diminishing returns, and may even be counterproductive.[13] More interveners do not necessarily continue to add a large benefit. This declining impact is consistent with some evidence that judges do not look to interveners for new evidence but for reinforcement of arguments already raised by the parties,[14] although also with the idea that there is only a certain amount of new information to be added such that there is diminishing marginal returns to each new intervener. Finally, as with litigants, the most influential amicus is the government—the solicitor general increases the success rate of appellants by almost 17 percent, and that of respondents by almost 26 percent.[15]

Judges then may be somewhat influenced by interveners, but the effect does not appear to be large. Judges in Canada and the united States seem to draw information from interveners rather than support for personal views.[16] However, interveners may slightly increase the likelihood of a dissent in a particular case. Studies of the influence of interveners on high courts other than the uS Supreme Court and the Supreme Court of Canada are unfortunately scarce.

DO PARTIES MAKE A DIFFERENCE?

The story about the influence of parties on judges is mixed. Resources appear to matter in certain situations, such as when the government is litigating, but this is not necessarily true across time and across countries. Repeat players do seem to do better overall, but, again, there are other factors at work such as a tradition of deference to the executive. Further, interveners may have a modest impact on judges through providing information about the case, but may modestly increase the propensity of a judge to dissent. Both the value of dissents and the factors that lead judges to dissent are controversial. It is to this issue we turn in the next chapter.

  • [1] Alarie & Green, “Interventions" supra note 17 at 407-408. Unexpectedly, they also foundneutral interveners make judges vote more liberally than do liberal interveners.
  • [2] Alarie & Green, “Interventions,” supra note 17 at 409. Anecdotal evidence also appears tosupport this, as anonymous judge has stated that interveners are “often valuable” because theybring a fresh perspective, though another found interveners less helpful as they were “too political’ ”: Donald R. Songer et al., Law, Ideology, and Collegiality: Judicial Behaviour in the SupremeCourt of Canada (Montreal: McGill-Queen’s University Press, 2012) at 87 [Songer et al., Law,Ideology].
  • [3] See also Collins, supra note 7 at 173.
  • [4] Kearney & Merrill, “Influence,” supra note 28.
  • [5] See also Collins, supra note 7 at 173.
  • [6] See also Collins, supra note 7 at 173.
  • [7] Songer, Kuersten & Kaheny, supra note 34. Donald R. Songer & Ashlyn Kuersten, “TheSuccess of Amici in State Supreme Courts” (1995) 48:1 Political Research Quarterly 31 (thepresence of amici also increases the chances of success in state supreme courts, regardless ofwhether they support the appellant or the respondent).
  • [8] Kearney & Merrill, “Influence,” supra note 28 at 830.
  • [9] Donald R. Songer & Reginald S. Sheehan, “Interest Groups Success in the Courts: AmicusParticipation in the Supreme Court” (1993) 46:2 Political Research Quarterly 339 at 346.
  • [10] Songer et al., Law, Ideology, supra note 72 at 161-163.
  • [11] Hanretty, “Lumpers and Splitters,” supra note 4 at 19.
  • [12] We used a logit regression with the dependent variable being whether the judge dissented, andthe independent variables being the presence of an intervener, the ideology of the judge (partyappointing the judge), the direction (conservative or liberal) of the lower court decisions, and thearea of law. The effects in Canada and Australia were significant at the .01 level and in the UK atthe .05 level. Recall that for the United States, the Spaeth database did not include informationon interveners so for the United States regressions in this case we used the HCJD, supra note 3.
  • [13] Kearney & Merrill, “Influence,” supra note 28 at 829.
  • [14] Spriggs and Wahlbeck analyze the content of amicus briefs, and examine which argumentsjudges actually rely on in their judgments. They find that 75 percent of the amicus briefs reiterated the arguments of the parties themselves, and that 33 percent provide no new informationat all. Moreover, judges are less likely to adopt an argument from an amicus brief if that argument was not also presented by the party. Thus they concluded that the benefit of amicus briefsis not in the provision of new arguments, but rather in the reinforcement of existing ones. JamesF. Spriggs II & Paul J Wahlbeck, “Amicus Curiae and the Role of Information at the SupremeCourt” (1997) 50:2 Political Research Quarterly 365 at 382-383.
  • [15] Kearney & Merrill, “Influence,” supra note 28 at 803-804.
  • [16] In Israel, Doron and Totry-Jubran looked at interveners but did not test their effect empirically: Doron & Totry-Jubran, supra note 14. Similarly, in Australia, Williams discussed the“entrenched preference” for governmental input as interveners but again did not systematicallyexamine the impact of interveners empirically: Williams, “Amicus Curiae,” supra note 10 at 396.
 
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