With Amici Like These …

In her dissent in Students for Fair Admissions—the Supreme Court decision that struck down race-based college admissions—Justice Ketanji Brown Jackson claimed that having a black physician more than doubles the likelihood that a high-risk black newborn will live. One problem: The statistic was false. Jackson was citing an amicus or “friend of the court” brief filed by the American Association of Medical Colleges (AAMC) that mischaracterized a 2020 study on newborn mortality.

Jackson’s dissent is hardly the first Supreme Court opinion to reference (mis)information found in an amicus brief, but it is arguably one of the clearest examples of why judges and policymakers should use caution when doing so. When it comes to affirmative action, these briefs can do more than just lead readers astray. They can also lobby against the American public’s view on this issue. 

Amici (“friends”) in this case refer to individuals and groups who aren’t parties in a case but who have a strong interest in the case’s outcome. They file briefs to offer the justices expertise, insight, and any other relevant information with the hope of influencing their decision.  

In the five cases in which the court ruled on affirmative action prior to Students for Fair Admissions, more than 350 amicus briefs were filed. In this case alone, amici submitted 93 briefs. This is in stark contrast to earlier decades. Amici averaged only one brief per case in the 1950s and only five briefs per case as recently as the 1990s.

What changed? Professional advocacy or interest groups, who are often behind most of the amicus briefs filed in a case, became key players in American politics, particularly in the context of controversial social policies like affirmative action. According to a paper by law professors Allison Orr Larsen and Neil Devins in the Virginia Law Review: “The ‘friends’ responsible for amicus briefs are motivated interest groups that want to urge their policy positions on the justices much like they lobby Congress.” And the briefs that aren’t authored by interest groups are instead authored by, they note, scholars, corporations, elected officials, military leaders, and other elites.

The court’s decisions in 1978’s Regents of the University of California v. Bakke and 2003’s Grutter v. Bollinger (which, together, greenlit the use of race and ethnicity in university admissions) illustrate the effect that amicus briefs—and the people and organizations behind them—have had in this area of law.

Bakke was the first case in which the court considered whether the use of an applicant’s race or ethnicity in university admissions violates the Constitution and federal law. The University of California at Davis Medical School had created a special program designed to guarantee the admission of at least 16 black, Chicano, Asian, and Native American students annually. While applicants from these four minority groups could compete for any of the 100 available seats in the medical school’s entering class, applicants who were of an unpreferred race—like plaintiff Allan Bakke, a white male—could compete for only one of 84 seats.

Five justices struck down the medical school’s special admissions program on the grounds that it constituted a racial quota in violation of the Equal Protection Clause, but this decision didn’t shut the door on affirmative action entirely. Justice Lewis Powell, in a plurality opinion, suggested that while racial quotas are illegal, the use of an applicant’s race or ethnicity as “one factor among many” in the admissions process might be permissible given that institutions of higher education have a “compelling interest” in the educational benefits of a diverse student body. 

Not only did most colleges and universities in the U.S. embrace Powell’s opinion as the primary justification for affirmative action, but the idea of student body diversity also gave rise to the larger DEI—diversity, equity, and inclusion—effort that has come to dominate higher education and corporate America. 

After he stepped down from the Supreme Court in 1987, Powell said that Bakke had been his most important opinion. But he didn’t think of this justification for affirmative action himself. He got the idea from an amicus brief filed in another affirmative action case four years earlier. (That case, DeFunis v. Odegaard, involved a challenge to the University of Washington Law School’s race-conscious admissions policy and was ultimately mooted by the court.) The brief, penned by former U.S. Solicitor General and Watergate Special Prosecutor Archibald Cox on Harvard’s behalf, included the following language: 

The belief that diversity adds an essential ingredient to the educational process has long been a tenet of Harvard College admissions. …

In recent years, Harvard has expanded the concept of diversity to include students from disadvantaged economic and racial and ethnic backgrounds. …

In practice, this new definition of diversity has meant that race has been a factor in some admissions decisions. 

Not only did Powell cite Harvard’s race-conscious admissions program as a model for other colleges and universities in the appendix to his Bakke opinion, but a 1977 memo between him and one of his law clerks reveals that he had the Cox brief in mind when crafting his opinion. Referencing language from the Cox brief, Powell wrote: “This is the position that appeals to me. Use DeFunis.”

The justification for affirmative action handed to Powell courtesy of the Cox brief was sustained 25 years later in Grutter, in which the court upheld the University of Michigan Law School’s use of race as a “plus factor” in admissions. This outcome, like that of Bakke, can be attributed to the amicus briefs that were filed in defense of affirmative action. Justice Sandra Day O’Connor, who wrote for the majority in this case, cited these briefs in her opinion and even referenced them when she announced the decision from the bench.

Amici, it would seem, can make all the difference, at least in cases concerning affirmative action. However, this might not be a good thing for democratic government, especially when we take public opinion into account. 

Advocacy groups claim to represent the interest of the American public, but a look at the amicus briefs field in Students for Fair Admissions shows that’s hardly always true. Of the briefs filed by advocacy groups,  83.5 percent advocated in favor of affirmative action. Similarly, 92 percent of Asian American advocacy groups filed briefs in support of Harvard and the University of North Carolina’s race-conscious admissions policies. Yet Pew Research Center polls from last month found that only 33 percent of Americans—and only 21 percent of Asian Americans, the group at the center of this case and the larger debate over affirmative action today—approve of selective colleges and universities taking race and ethnicity into account when making admissions decisions. A wide gap exists between public opinion on race-conscious admissions and the opinion of most advocacy groups.   

In her book The Majesty of Law, O’Connor wrote that “rare indeed is the legal victory—in court or in legislature—that is not a careful byproduct of an emerging societal consensus.” The societal consensus surrounding affirmative action, however, has been wildly misconstrued. In putting an end to 45 years of race-based college admissions, today’s court was able to see that.