New Report: How “Amicus Briefs” Lost Touch with Public Opinion

Would-be aids to policymakers and judgeshave been captured by a powerful few

New York, NY – This year’s most anticipated Supreme Court cases—Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina—are finally settled, dealing a blow to the use of race in university admissions. In a new Manhattan Institute report, Paulson Policy Analyst Renu Mukherjee examines the amicus briefs submitted by advocacy groups that hoped to influence the justices’ opinion in this case, discovering major discrepancies between these and public opinion on the controversial policy known as affirmative action.

Mukherjee finds that while almost two-thirds of Americans oppose the use of an applicant’s race in college admissions, 83.5% of the advocacy groups that were amici in these cases lobbied in support of racial preferences. A wide gap exists, then, between public opinion on racial preferences and the opinion of most advocacy groups and elites. Mukherjee surveys the history and role of amicus briefs to the nation’s highest court, explaining how the advocacy groups originally intended to make policymaking more democratic got so out of touch with the views of most ordinary Americans.

Mukherjee also makes recommendations for how to best move forward, including:

•  Informing judges and policymakers about the gap between advocacy groups’ priorities and American public opinion can help ensure that these influential figures approach amicus briefs with a heathy level of skepticism.
• Highlighting the funding and staff behind advocacy groups can help judges see which briefs genuinely represent ordinary people and communities—such as the concerned families and friends supporting Students for Fair Admissions—and which represent professional advocacy groups like those defending Harvard and UNC in these twin cases.

Read the full report here.