The primary role of the United States’ judiciary is to interpret the law. Judges work in courts at the federal, state, and local levels. Unlike the legislative and executive branches of government, the judicial branch is not often viewed as a policy audience, and judges are often regarded as nonpartisan and/or apolitical.
However, judicial decisions can shape—and have significantly shaped—policy. A few notable Supreme Court cases impacting health policy include the following:
- King v. Burwell upheld the Affordable Care Act (ACA), which expanded health coverage to millions of Americans.
- Roe v. Wade made abortion a legal medical procedure in the U.S.
- Wilder v. Virginia Hospital Association upheld an amendment giving states the ability to determine the adequacy of Medicaid payment rates.
When considering the judiciary role in health policy, health policy professionals have expressed concerns as to whether judges are equipped with the educational or experiential background to make decisions involving complex issues such as health insurance coverage or disease management. Judges are often left to self-educate on such issues.
Here, we will consider the judiciary as an audience for health services research (HSR) and discuss how researchers can facilitate informed health policy decision-making in the courts, including through amicus curiae brief-writing.
Where Research and the Judiciary Meet
The evidence generated by health services researchers is especially informative for policy audiences, including the judiciary. There are a few commonly used formats for researchers to disseminate information to courts, which include following:
Expert witnesses: Courts appoint witnesses to serve as experts on a given topic pertinent to the case, such as technology or neurological science. Health services researchers may lend their expertise to a variety of cases that require a nuanced understanding of the health care system. Expert witness search firms work to match vetted experts with lawyers and cases who are in need of their particular expertise.
Amicus curiae briefs: Amicus briefs, also known as “friend-of-the-court” briefs, allow researchers to provide insight into the potential impact of a ruling related to health policy and/or health care using relevant research evidence. The ACA decision in 2015 is one such example in which many research institutes filed amicus briefs to share expert evaluation of the potential impacts of increased health care coverage rendered by the law.
Judicial education: There are additional methods to facilitate judicial engagement with research. Research institutes and think tanks, such as the American Association for the Advancement of Science (AAAS), host judicial seminars to educate judges on emerging issues within science and health research, including neuroscience and the brain. There are also efforts to train judges to interpret scientific research, such as the National Court and Sciences Institute (NCSI) which educates judges about various scientifically complex topics, offering certifications in specific evidence concentrations. These concentrations include “Health Care Outcomes Research as Evidence.”
Targeted translation and dissemination: Some organizations work specifically on transforming research evidence into accessible information for judicial audiences. The TRANSFORM Center focuses on disseminating child maltreatment research into information that judges can use, such as how previous traumas might affect a person’s verbal and body language responses during a court case.
Submitting an Amicus Brief
Researchers can use an amicus brief to present the court with an argument that legal counsel is unable to make, but that may influence the judge’s decision. Amicus briefs are often filed in appellate cases heard by state and federal appellate courts, including the U.S. Supreme Court. They can be submitted during the petition stage, when an appellate court is weighing whether or not to hear the case, or during the merit phase, in support of either side.
The last decade has seen a substantial increase in the number of briefs filed each year. The Supreme Court justices cited amicus briefs in 65 percent of cases in the 2019-2020 term (a record), with some cases on high-profile issues, like health care, receiving more than 100 amicus briefs.
Each state and federal appellate court has its own detailed set of procedures to follow for filing amicus briefs (see Rule 37 of the Supreme Court rules as an example). While any person or group can author a brief, an attorney in good standing must submit it to the court.
The most effective amicus briefs are those that provide additional evidence or insights for the court to consider, as opposed to briefs that duplicate the arguments made by the parties to the case, which are largely ignored. Communication with the legal team is essential to preventing the submission of such “me too” amicus briefs.
While attorneys sometimes work directly with individual researchers to produce briefs based on their research, it is also common for brief writers to draw on a body of recent analyses produced by the field to inform a brief. In the case of King v. Burwell, for example, 18 amicus briefs cited research reports produced by the Urban Institute that estimated the impacts of the Supreme Court decision on insurance coverage and health care spending, and Chief Justice Roberts ultimately referenced one of the Urban Institute’s reports in the majority opinion.
Health plans, advocacy groups, and industry players typically track the progression of cases through the judiciary system and identify opportunities for the community to contribute expertise. Because legal counsel may lack knowledge of the health services and policy research field, it is often up to researchers to initiate contact, and then work with the attorneys to file briefs on their behalf.
Although the judiciary often goes unnoticed as a policymaking audience, this branch of government plays a vital role in shaping policy through its interpretation of the law. Ongoing challenges to the constitutionality of the ACA underscore the pressing importance of the courts in health policy.
As opposed to typical dissemination approaches for which it can be difficult to gauge impact, contributing to the judicial process is a direct way for health services and policy research to have a direct influence on health care policy. If your amicus brief is cited in a ruling, that is clear evidence of the impact of your work.