There's "Trouble with Amicus Briefs" at the Supreme Court -- notably an increased reliance on "facts" that aren't

-- appendix to Professor Larsen's paper (click to enlarge)

The amicus brief has served a valuable role over time in educating Supreme Court Justices and supplementing the arguments the parties can make. But times have changed. There is a new emphasis in Supreme Court decision making on generalized factual claims and a turn toward empirical factual support for legal arguments. There is also a brave new world of factual data that can be marshalled easily and quickly by any interested party who can call itself an expert. The Court seems hungry for factual information; it consumes it at a greater rate than the parties and the record can provide. But by turning to motivated interest groups to fill the need – and indeed relying on the amicus briefs themselves as evidence on factual claims -- the Court risks tainting its decisions with unreliable evidence. It is time to rethink the expertise providing role of the Supreme Court amicus, and to refashion this old tool for the new purpose to which it is currently being used.

-- the "Conclusion" to Prof. Allison Orr Larsen's
paper "The Trouble with Amicus Facts"

by Ken

Going by such numbers as we have here at DWT, I notice that when I write about the doings of the Supreme Court, and especially what we know about its workings, reader interest usually drops off a cliff. (Okay, maybe "rolls down a perceptible hill" would be more like it.) Which makes me wonder whether it's perhaps for reasons somewhat similar that Adam Liptak's intriguing NYT report "The Dubious Sources of Some Supreme Court 'Facts'" came to be dumped into the Labor Day Weekend trough.

Or perhaps the timing is simply keyed to the soon-to-happen publication of an article by College of William and Mary law Prof. Alli Orr Larsen, "The Trouble with Amicus Facts," in the Virginia Law Review. Adam L cites Professor Larsen's finding in brief: "The court is inundated with 11th-hour, untested, advocacy-motivated claims of factual expertise." And those "11th-hour, untested, advocacy-motivated claims" are finding their way into lots of real, live Supreme Court opinions.

Adam L begins his piece:

The Supreme Court received more than 80 friend-of-the-court briefs in the Hobby Lobby case. Most of these filings, also called amicus briefs, were dull and repetitive recitations of familiar legal arguments.

Others stood out. They presented fresh, factual information that put the case in a broader context.

The justices are hungry for such data. Their opinions are increasingly studded with citations to facts they learned from amicus briefs.

"A perilous trend" is how Adam L characterizes Professor Larsen's reaction to her findings, and this seems absolutely correct as to both her reaction and her findings. Here is the abstract for her "research paper" (which runs to 57 pages in the downloadable-free PDF file, which I freely confess I haven't read, at least not yet):

The number of amicus curiae briefs filed at the Supreme Court is at an all-time high. Most observers, and even some of the Justices, believe that the best of these briefs are filed to supplement the Court’s understanding of facts. Supreme Court decisions quite often turn on generalized facts about the way the world works (Do violent video games harm children? Is a partial birth abortion ever medically necessary?) and to answer these questions the Justices are hungry for more information than the parties and the record can provide. The consensus is that amicus briefs helpfully add factual expertise to the Court’s decision-making.

The goal of this article is to chip away at that conventional wisdom. The trouble with amicus facts, I argue, is that today anyone can claim to be a factual expert. With the Internet, factual information is easily found and cheaply manufactured. Moreover, the amicus curiae has evolved significantly from its origin as an impartial “friend of the court.” Facts submitted by amici are now funneled through the screen of advocacy. The result is that the Court is inundated with eleventh-hour, untested, advocacy-motivated claims of factual expertise. And the Justices are listening. This article looks at the instances in recent years when a Supreme Court Justice cites an amicus for a statement of fact. It describes the way the brief, rather than the underlying factual source, is cited as authority and the failure of the parties to act as an adequate check. I challenge this process as potentially infecting the Supreme Court’s decisions with unreliable evidence, and I make suggestions for ways to reform it. It is time to rethink the expertise-providing role of the Supreme Court amicus and to refashion this old tool for the new purpose to which it is currently being used.

THERE ARE TWO ISSUES HERE, STARTING
WITH ONE OF BASIC LEGAL PROCEDURE

First, there's the legal question of whether the justices should be marshaling facts of their own at all. As Adam L notes, appellate courts normally "are not supposed to be in the business of determining facts," which is "the job of the trial court, where evidence is submitted, sifted and subjected to the adversary process."

Appellate courts traditionally take those facts, fixed in the trial court record, as a given. Their job is to identify and apply legal principles to those facts.

And one justice has tried to steer his colleagues back to this basic principle. Can you guess who?

Justice Antonin Scalia made this point in a 2011 dissent chastising the majority for its blithe acceptance of “government-funded studies” that “did not make an appearance in this litigation until the government’s merits brief to this court.”

But “Supreme Court briefs are an inappropriate place to develop the key facts in a case,” Justice Scalia wrote. “An adversarial process in the trial courts can identify flaws in the methodology of the studies that the parties put forward; here, we accept the studies’ findings on faith, without examining their methodology at all.”

The net result, he said, is “untested judicial fact-finding masquerading as statutory interpretation.”

And if you look at the chart at the top of this post, provided by Professor Larsen as an appendix to her paper, you'll see that Justice Nino is as good as his word. Of course Justice Nino doesn't need to go searching for facts. He hardly needs facts at all. Oh, he pays lip service to the facts as established at trial, but in reality he's just cherry-pickin' the facts, and the law, and the Constitution, and the original intent of the Framers, to line up with the unerring legal wisdom that comes from the miasma of his intensely ideological stinkybutt.

Still, at least Justice Nino sticks to his guns in his aversion to considering new facts, unlike a colleague who claims to have the same opinion but turns out to be lying his putrid guts out.

Can you guess who this steadfast stinkybutter is? We'll come back to this in a moment.


BUT FIRST WE NEED TO CONSIDER THE OTHER,
MUCH BIGGER PROBLEM: ACTUAL FACTUALITY

With this new practice of "copying" from the Internet, says Professor Larsen, an awful lot of bilge is being imported. Here's Adam L again:

Some of the factual assertions in recent amicus briefs would not pass muster in a high school research paper. But that has not stopped the Supreme Court from relying on them. Recent opinions have cited “facts” from amicus briefs that were backed up by blog posts, emails or nothing at all.

Some amicus briefs are careful and valuable, of course, citing peer-reviewed studies and noting contrary evidence. Others cite more questionable materials.

Some “studies” presented in amicus briefs were paid for or conducted by the group that submitted the brief and published only on the Internet. Some studies seem to have been created for the purpose of influencing the Supreme Court.

Yet the justices are quite receptive to this dodgy data. Over the five terms from 2008 to 2013, the court’s opinions cited factual assertions from amicus briefs 124 times, Professor Larsen found.

The phenomenon is novel. “The U.S. Supreme Court is the only American judicial entity that depends so heavily on amicus briefs to educate itself on factual matters,” Professor Larsen wrote.

And as Adam L points out, the new "facts," not part of the judicial record, to which Justice Nino objected so vociferously in that 2001 dissent: (1) were at least government-funded studies, and (2) "were submitted by a party to the case and thus were likely to be closely examined by the other side."

Most of the information from the amicus briefs recently cited by the justices was not subjected to even that level of adversary scrutiny. Only 28 percent of the cited materials drew a response from one of the parties in the case.

And in the Hobby Lobby case, Adam L writes,

Justice Samuel A. Alito Jr. pushed back against the recent trend, refusing to consider “an intensely empirical argument” in an amicus brief. “We do not generally entertain arguments that were not raised below and are not advanced in this court by any party,” he wrote.

OOPS! WE HAVE TO REMEMBER THAT SAMMY
"THE HAMMER" IS A PATHOLOGICAL LIAR

Or maybe he's simply so blinkered by his rigidly far-right ideological view of the world that he sincerely doesn't recognize where reality ends and his delusions begin. Whatever the process, Professor Larsen begs to differ with The Hammer. Adam L quotes from a recent blogpost of hers, "Allisn Orr Larsen on Intensely Empricial Amicus Briefs and Amicus Opportunism at the Supreme Court":

"This descriptive statement by Justice Alito about Supreme Court practice is simply incorrect."

"Consider these examples," writes Adam L.

In a 2011 decision about the privacy rights of scientists who worked on government space programs, Justice Alito cited an amicus brief to show that more than 88 percent of American companies perform background checks on their workers.

“Where this number comes from is a mystery,” Professor Larsen wrote. “It is asserted in the brief without citation.”

In a 2012 decision allowing strip searches of people arrested for even minor offenses as they are admitted to jail, Justice Anthony M. Kennedy cited an amicus brief to show that there are “an increasing number of gang members” entering the nation’s prisons and jails. The brief itself did little more than assert that “there is no doubt” this was so.

And in a 2013 decision, Justice Stephen G. Breyer cited an amicus brief to establish that American libraries hold 200 million books that were published abroad, a point of some significance in the copyright dispute before the court. The figure in the brief came from a blog post. The blog has been discontinued.

While I realize that what I'm about to say can be dismissed as my own ideological bias, I strongly believe it isn't, being based on extended exposure to the legal thinking and writing of the justices involved. You'll note from Professor Larsen's table that Justice Breyer, who notched only one fewer amicus-brief citations than the champ, "Slow Anthony" Kennedy" -- and also only one more than Sammy "We Do Not Generally Entertain Arguments That Were Not Raised Below and Are Not Advanced in This Court by Any Party" the Hammer -- is trying, however fumblingly, to get a handle on the reality of the case at issue.

One might wish Justice Steve would be more careful about establishing his "facts," but what we're seeing here seems to me a now-familiar left-right divide between means and goals we see played out time and again, as for example in the confirmation hearings that regrettably allowed Clarence Thomas to slither onto the Supreme Court. While the center-lefties are trying to grope their way to "truth," the righties are looking only for results.

It's the basic modus operandi of right-wing "journalism," where the "journalist" starts with "the truth," as divined from the deep recesses of his stinkybutt and then for his "reporting" goes in search of factoids, or anything at all really, that buttress his "truth." Stinkybuttresses, we might call them. And when he still can't find anything, he can always just make stuff up -- like, apparently, the source cited by Sammy the Hammer for that unsourced "88 percent" number.

So is it any surprise that, when it suits Sammy the Hammer's convenience -- as, for example, arriving at the repellent conclusion the majority arrived at in the Hobby Lobby case -- he will get on his high horse to denounce the practice of "entertain[ing] arguments that were not raised below and are not advanced in this court by any party."  One might suggest that those arguments could show him up for the prejudging intellectual hooligan he is.

The Hammer is, after all, one of the Court's foremost practitioners of the out-of-left-field amicus stealth bomb. In his defense, one might point out that since just about every word he said at his confirmation hearings was a lie, he might consider that he was unusually forthcoming in the "What You See Is What You'll Get" department.

Adam L concludes his piece:

Kannon K. Shanmugam, a lawyer with Williams and Connolly who argues frequently before the court, said the justices’ quandary was a common one.

“The Supreme Court has the same problem that the rest of us do: figuring out how to distinguish between real facts and Internet facts,” he said. “Amicus briefs from unreliable sources can contribute to that problem.”

Which is true as far as it goes. Unfortunately, it applies only to situations where a person is looking for "real facts," and not just stinkybuttresses.

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