The Rise of Scholars' Amicus Briefs: How Academic Voices Shape Supreme Court Decisions
The Supreme Court is citing an increasing number of amicus briefs from academics. This article goes through the who, where, and why these are frequently referenced.
On June 24, 2022, the Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization, overturning nearly fifty years of abortion rights precedent. The decision across all opinions cited six different scholar briefs—amicus curiae submissions signed by law professors and academic experts—more than any other decision in recent memory. The opinion’s deployment of academic authority was both extensive and strategic. When challenging Roe’s treatment of common law abortion prohibitions, Alito invoked a brief from scholars of jurisprudence James Stoner and John Finnis, asserting that “’a quick child’ meant simply a ‘live’ child” under early modern understanding—a historical claim that, if accepted, would dramatically expand the temporal scope of abortion’s criminal prohibition. The opinion relied even more heavily on professional historians’ submissions to reconstruct nineteenth-century legislative intent. In a revealing methodological move, Alito cited historians’ work to demonstrate that “at least 26 of 37” states had criminalized abortion at all stages of pregnancy by 1868—the year the Fourteenth Amendment was ratified—thereby establishing the historical tradition against which contemporary abortion rights claims must be measured.
This intensive marshaling of academic expertise in Dobbs exemplifies a broader transformation in Supreme Court practice. The 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. Kelly Lynch acknowledges this ambiguity, noting that while “it is likely that in many cases scholars can have at least some beneficial effect on the development of the law,” the causal mechanisms remain opaque. We know that Justices cite scholar briefs with increasing frequency; we know far less about whether these citations reflect persuasion or mere justification.
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.
Along with contextualizing these citations, this article tracks attributes of the scholars and institutions that contributed most to the justices’ citations.
Methodology notes: The search parameters included briefs mentioning scholar(s) or professor(s) so there may be briefs that fall into the same category but were titled differently and were missed. This also only covers information specified within the briefs so while most briefs share the institution where a professor work and other details, there is no standardized information template used across briefs.