Amicus briefs, the culture war, and social science research
A new study shows how legal groups on the left and right reflect larger cultural conflicts. So what?
Last month the U.S. Supreme Court announced its opinion in Carson v. Makin, which struck down a Maine program that funded private, nonsectarian schools while prohibiting this funding from going to religious schools. The case was an important development for the First Amendment’s religion clauses, and attracted its share of attention from interest groups, activists, and scholars. In fact, according to SCOTUSblog, no fewer than 55 people and organizations filed amicus curiae briefs at various points while the Supreme Court was considering this case.
What are amicus curiae briefs, exactly? Amicus curiae translates to “friend of the court.” These are legal filings from interested parties arguing for a particular outcome in a case. Anyone can file an amicus brief, so long as they follow the correct protocols and formatting required by the Court. All it takes is a lawyer familiar with this unique style and several thousand dollars to pay for the time it takes to craft such a brief. In high-profile cases, it’s not unusual for dozens of amicus briefs to be filed on either side of a dispute. The goal is to convince judges (and, ultimately, Supreme Court justices) to adopt the brief’s argument as they debate and decide the case.
A new article in Politics and Religion—arguably the preeminent journal in the study of religion and politics—shows how legal interest groups on both the left and the right have increasingly been engaging through the courts on issue areas central to the culture wars. The implication is that, just as religious interest groups and activists have increasingly tried to shape policy making and electoral outcomes, related actors are following suit in the legal system.
The paper’s authors—Jonathan Hensley and Paul McCartney, both political scientists at Towson University—study amicus briefs to examine the trends among religious legal interest groups seeking to advance their goals through the courts.1 Specifically, the authors identify four liberal religious interest groups and three conservative ones,2 and track how these groups have filed amicus briefs at the Supreme Court over the years. They find that these groups have increased their activity on a range of legal issues over the years, mirroring what we’ve seen from religious organizations in other aspects of policy disputes. Specifically, they write,
Our investigation of religious organizations’ amicus filings over the past 50+ years, including examples of recent arguments contained in them, demonstrates that both conservative and progressive faith groups have developed a keen appreciation for the court system’s ability to stymie or advance their moral vision for the United States, and they are increasingly willing to pursue their respective agendas aggressively in this arena.
I recently got an email from somebody referencing this article, asking whether and why it had anything particularly interesting to say. After all, the premise of the article is pretty straightforward: Legal interest groups have followed the lead of other elites and interest groups in culture war conflicts, and their activity in legal advocacy reflects a growing divide on religious and cultural issues. Moreover, it isn’t like this idea is novel; scholars (like me) who have been studying these questions for a while aren’t likely to be surprised with the authors’ conclusions. Isn’t this article, the person asked, a bit like stating the sky is blue?
In graduate school I worked as the editorial assistant for a major journal on religion, politics, and society. We received dozens and dozens of submissions every year, ultimately publishing the best of them in one of the year’s four issues. In my experience, there were usually three kinds of articles that got published. The first is the theoretically innovative, where the authors advanced a new (or at least partially new) theory to explain a phenomenon that can be empirically studied. These articles are relatively rare. The second is the methodologically innovative, where the authors employ new and sophisticated methods to test an enduring question. These articles are more common.
The third is centered on novel data collection, where the authors collect previously unknown data and use this data to explore an important and timely question. In my experience, these articles are the most common to be published. And it is to this category the above article belongs. The authors don’t advance a new theory making sense of a sociopolitical phenomenon, nor do they utilize especially innovative analytic tools to make sense of their data. Rather, it is their newly acquired data that makes this article worthwhile, shining new light at a distinctive angle on something scholars have been observing for some time.
Despite my minor quibbles with the research design, Hensley and McCartney’s article strikes me as a fine piece of social science. It explores an important topic in an innovative way, using intuitive data and straightforward analyses to reach a reasonable and grounded conclusion. Social science research does not have to change the world. Sometimes, a good article simply confirms what we already knew, or better yet, what we thought we knew. And that’s exactly what this article does.
This is a topic on which I have written a great deal, including my 2017 book, Defending Faith: The Politics of the Christian Conservative Legal Movement, and book chapters published in 2014 and 2018.
I have nits to pick with the study’s sample. For instance, they include the Christian legal group American Center for Law and Justice in their analysis, but don’t examine more active or prominent Christian legal groups like Alliance Defending Freedom or First Liberty Institute. If I was asked to review this article while it was under consideration for publication, I would have asked for a better explanation of how and why they developed their sample.