Politics or Policy: Prosecutor Amicus Participation in U.S. Supreme Court Fourth Amendment Cases

All politicians have the twin desires of making policy in their interest and getting reelected. These twin motivations often overlap, but may diverge as well. Crafting policies in highly salient policy areas means that policy makers must be responsive to public opinion, but making policy in areas of low salience enables policy makers to be more selectively responsive or to exclusively pursue his/her own preferred policies. Because of the low issue profile, policy makers may be able to pursue their own policy interests autonomously, unless well-organized constituents monitor their behavior. In this paper, I examine this balance between politics and policy in the case of state attorneys general in the United States, elected state-level prosecutors. The filing of amicus (“friend of the court”) briefs before the United States Supreme Court can represent an important policy action, as it urges the Court to make a particular decision in a particular case. State attorneys general file amicus briefs when they believe there are important issues of law to be settled in the case, but their decision to file may also rest on the question of who is affected by the case outcome, a more politically charged question. Here, I examine the decisions of all fifty state attorneys general to participate as amicus in 24 search and seizure cases before the Supreme Court from 1990-2000. On one hand, state AGs may be influenced primarily by legal issues, such as lower court conflict in the case and the intrusiveness of the search. On the other hand, state AGs may be more influenced by constituent interests, such as the strong presence of police associations or a Republican governor that emphasizes law and order. The findings promise to shed light on how elected prosecutors maintain the balance of accountability and policy making independence.