Having served as chair of a very active amicus committee for the New York State Association of Criminal Defense Lawyers years ago, it became clear how amicus could use its platform to bring issues and arguments to the fore that the parties might otherwise have neglected or been precluded from doing. It was a powerful opportunity.
But one guiding rule was that anything offered had to be accurate in terms of being fully supported. The idea was that claiming a fact not in evidence, or unsupported, would destroy credibility and render the effort worthless. The judges would laugh at us if we didn’t maintain our cred.
Apparently, that’s not exactly the case in all courts, or at least not before the United States Supreme Court. Via Adam Liptak in his New York Times Sidebar column:
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 of facts they learned from amicus briefs.
Indeed, the insertion of facts outside the record played a major role in the amici briefs in the Weev appeal, seeking to educate the 3rd Circuit as to how com-pu-ters and the in-ter-net worked. For a great many people, this was the critical foundation they believed the court lacked, but more importantly, had not been adequately developed, and so amici stepped into the breach. Indeed, given that the government tried to play the “I don’t know nuthin’ about birthin’ no babies” game in arguing that the Circuit should rule based on ignorance rather than knowledge, it was one hell of a huge breach.
But what if amicus is just making stuff up?
But this is a perilous trend, said Allison Orr Larsen, a law professor at the College of William & Mary.
“The court is inundated with 11th-hour, untested, advocacy-motivated claims of factual expertise,” she wrote in an article to be published in The Virginia Law Review.
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.
Not exactly shocking given the politicized nature of law.
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.
But it’s not merely that the amicus briefs contained nonsensical facts, but that the Supreme Court seized upon them to reach its decision.
Consider these examples.
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.
On all levels, we’re up to our eyeballs in utterly baseless statistics and claims, not to mention arguments that defy logic. We see junk science in the courtrooms, adopted by courts until they become so deeply ingrained in our jurisprudence that we can’t seem to get rid of them no matter how absurd they are (think drug dogs providing probable cause, if you need an example).
But the Supremes? Aren’t they supposed to be a little better, a little smarter, a little less susceptible to latching onto phony facts and perpetuating them as part of legal mythology? Obviously not.
As Jonathan Adler notes at Volokh Conspiracy, one significant problem with the presentation of nonsense by amici is that the parties (or other amicus) don’t necessarily have an opportunity to refute it, when the amicus brief arrives at the last minute. As he also notes, the “Brandeis Brief” concept may seem cutting edge science-y at the time, but may ultimately prove fatuous in retrospect.
While Brandeis may have thought he was helping the Court by presenting it with state-of-the-art research, we know now that much of what Brandeis claimed was ludicrous. As David noted here, the brief consisted of a “hodgepodge” of social science claims, including some that were “nonsensical, even given the state of medical knowledge at the time.”
Not only does this prove embarrassing for the Court and the system, but we’re saddled with decisions that will impact lives for a very long time predicated on the “obvious” claims of advocates that may lack any support in reality.
And if the Supreme Court, with its leisurely pace, its wealth of resources and all those very smart law clerks working feverishly in the back rooms, can’t do better than this, then the fantasy of fact in lower courts doesn’t stand a chance.
SHG,
You will find one of the best examples of the point made in your excellent post in the opinion written for the Court by Justice Kennedy in the federal partial birth abortion case, GONZALES v. CARHART. This is what he wrote and to which I refer:
In “Crooks and Liars”, Jon Perr, “Studies Refute Justice Kennedy On Post-Abortion Syndrome” ( December 22, 2010) you will find a good discussion of the legitimate science on the subject discussed by Justice Kennedy. What is particularly stunning is that Justice Kennedy apparently recognized the science did not support him (“We find no reliable data . . . “), but was moved by the mere citation (“See Brief for Sandra Cano”) to the possibility that such data might exist.
All the best.
RGK
I wonder how long it took him to come up with the phrase, “it seems unexceptional.” I think I’ll try it in my next brief and see how well it flies. Great example, Judge.
One solution would be to add this disclaimer:
This Opinion needs additional citations for verification. Please help improve this Opinion by adding citations to reliable sources. Unsourced material may be challenged and removed.
I just invented a new technology for the interwebz: AmicusSnopes.com
Don’t you mean Amicus Snopes 1000?