These final set of comments are, like the earlier ones, thoughtful and helpful. I had not previously seen debated the anonymous petition/brief issue. There was only one comment that I recall that posed a specific question back to me, which I will try here to respond in this final blog.
The question concerned the percentage of cases on the Court's docket that were "test cases." My impression is that relatively few cases fit that description. But it certainly does happen. The abortion cases in response to a recently enacted restriction on abortions tend to be test cases. Everyone knows from the outset that the case has a good chance of going up. The same is true for cases like the campaign finance law, or the latest iteration of a federal child pornography statute.
Two examples of organizations that come to mind as having been effective in working in the lower courts to develop a good “test” case for Supreme Court review in furtherance of their policy agenda are Jay Sekulow’s organization, the American Center for Law and Justice, and the Pacific Legal Foundation. Both these organizations have at times been effective at choosing carefully the specific case, based on the facts and legal issues raised, that can serve as a favorable vehicle for establishing the precedent they hope to obtain from the Court.
But, if you look at the Court’s docket, these kinds of test cases are the exception. Even when folks know that the Court is interested in a particular subject matter, the odds of any one case being the case that ends up there is sufficiently remote that the impact on how the lower court attorneys litigating the case tends to be minimal. The private sector leaders of the Supreme Court Bar are, at least so far, insufficiently involved in the lower courts to play that role, so one is more likely to see it in liberal or conservative organizations, following Marshall’s Inc. Fund model, who have a particular focus on the Supreme Court.
Again, thanks for the comments.