“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.”, New York Times, September 2, 2014
“Supreme Court briefs are an inappropriate place to develop the key facts in a case. 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 is) untested judicial fact-finding masquerading as statutory interpretation.”, Supreme Court Justice Antonin Scalia
“According to the written terms of the recent civil settlement agreement between Bank of America and the United States Department of Justice (a nearly $17 billion financial settlement related to BofA’s mortgage lending and securitization activities), NO FACTS AT ALL WERE DETERMINED: “this Agreement…is made without any finding of any issue of fact or law”.” Mike Perry, former Chairman and CEO, IndyMac Bank
POLITICS | SIDEBAR
Seeking Facts, Justices Settle for What Briefs Tell Them
By ADAM LIPTAKSEPT. 1, 2014
Justice Antonin Scalia has criticized the court’s acceptance of data found in amicus briefs.CreditHaraz N. Ghanbari/Associated Press
WASHINGTON — The Supreme Court receivedmore 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.
But this is a perilous trend, said Allison Orr Larsen, a law professor at the College of William and Mary.
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.
The trend is at odds with the ordinary role of appellate courts, which are not supposed to be in the business of determining facts. That 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.
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.”
At least the studies that Justice Scalia complained about 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.
In the Hobby Lobby case, 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.
Not so, Professor Larsen wrote in a recent blog post. “This descriptive statement by Justice Alito about Supreme Court practice is simply incorrect,” she wrote.
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.
In an interview, Professor Larsen said she was struck by how often justices cited the amicus briefs themselves as sources of authority, as opposed to the materials collected in the briefs. “It really makes you wonder how much digging the justices are doing,” she said.
Kannon K. Shanmugam, a lawyer with Williams & 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.”A version of this article appears in print on September 2, 2014, on page A10 of the New York edition with the headline: Seeking Facts, Justices Settle for What Briefs Tell Them.