Adam Feldman (Empirical SCOTUS), The Rise of Scholars’ Amicus Briefs: How Academic Voices Shape Supreme Court Decisions:
[Supreme Court] Justices increasingly turn to scholar briefs not merely for doctrinal synthesis—a traditional function of academic amici—but for empirical claims, historical reconstruction, and comparative constitutional analysis that shapes the Court’s understanding of fundamental legal questions. These submissions occupy a distinctive rhetorical space. Unlike party briefs, which advance partisan positions within adversarial constraints, scholar briefs purport to offer disinterested expertise. As Paul Collins observes, they “allow professors to make their views known to judges and provide expert knowledge and commentary from (ostensibly) neutral legal experts.” This neutrality—whether genuine or performed—confers epistemic authority that practicing attorneys cannot easily replicate. A multisignatory historians’ brief carries intellectual weight beyond its legal argumentation precisely because it appears to represent scholarly consensus rather than litigation strategy.
Yet the expanding influence of scholar briefs raises troubling questions about the relationship between academic knowledge production and judicial reasoning. Do these submissions genuinely inform constitutional interpretation, or do they merely provide scholarly imprimatur for conclusions reached through other means? When Justice Alito cites historians to demonstrate that abortion was widely criminalized in 1868, is he incorporating new historical evidence into his analysis, or mining academic briefs for convenient citations that support an outcome predetermined by his constitutional philosophy? The very features that give scholar briefs their authority—their claim to expertise, their apparent distance from litigation incentives, their aggregation of credentialed signatories—may also enable a form of motivated reasoning dressed in academic garb. …
This article examines an original dataset of 103 scholar briefs and over 2,300 individual scholars that contributed to these briefs cited by the Supreme Court between the 2015 and 2024 Terms to map the landscape of academic influence in contemporary constitutional adjudication. The analysis reveals which doctrinal domains attract scholarly intervention, which institutions and methodologies dominate the cited literature, and which cases generate the most intensive academic engagement. These patterns illuminate not only what kinds of expertise the Court values, but also the structural features of legal academia—institutional prestige, disciplinary boundaries, professional networks—that determine whose scholarly voices reach the Justices. More fundamentally, this empirical account sets the stage for a critical assessment of scholar briefs’ actual influence. If academic amici cluster predictably around elite institutions, if their historical claims align suspiciously well with litigants’ constitutional theories, if cases decided on originalist grounds systematically cite originalist historians while living constitutionalist opinions cite different scholars entirely, we might reasonably suspect that scholar briefs function less as genuine knowledge inputs than as rhetorical resources in an ideological struggle over constitutional meaning. …
Brian Galle (UC-Berkeley) is the only Tax Prof among the 22 scholars in three or more cited briefs:
Certain individual scholars emerge as repeat players in Supreme Court briefing. Twenty-two scholars appeared as signatories on three or more cited briefs, spanning diverse institutional affiliations and areas of expertise. William W. Berry III (University of Mississippi School of Law), Joseph Blocher (Duke Law), and Darrell A. H. Miller (Duke Law) each signed multiple cited briefs. These repeat appearances suggest these scholars have developed particular expertise in areas of active Supreme Court litigation, established relationships with frequent litigators, and demonstrated credibility with the Justices through prior cited work.
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