About Those “Friends” Of The Supreme Court …

In case you wondered about some of those dubious recent Supreme Court decisions, this article sheds some light:

“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.

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.

Huhn. “Some studies seem to have been created for the purpose of influencing the Supreme Court.” Nobody could have anticipated!

Seriously, is anyone surprised by this? Anyone at all? In a world where everything is manipulated, skewed, twisted, freeped and reshaped to favor one political agenda or another, is anyone shocked to learn that groups have targeted the United States Supreme Court along with every other corner of American civic life?

No, what’s truly shocking is that our esteemed Justices haven’t used, pardon the pun, better judgment when it comes to the sources they cite in their opinions.

For example:

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.

Good grief.

What’s really horrendous is that, as the article states, folks like Justices Scalia and Alito have criticized their colleagues’ practice of citing facts from amicus briefs in their decisions, yet they themselves do it, too — when it’s convenient for their arguments, of course. In the Hobby Lobby case, Alito….

…[refused] 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.

… yet in a 2011 decision,

… 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.”

What this tells me is SCOTUS justices have already made up their minds about the cases before them and cherry-pick dubiously-sourced “facts” from amicus briefs — or not! — to justify their pre-arrived decision.

This is a horrible thought, because it diminishes America’s highest court in the land to mere Kabuki. That’s a level of cynicism even I never fathomed.

We’re so fucked.


Filed under Supreme Court

11 responses to “About Those “Friends” Of The Supreme Court …

  1. GregH

    Not entirely, especially if the next POTUS is a Dem. That person will likely get to nominate a replace for “El Nino” Scalia. Oh wait. The nominee will have to be confirmed by the Senate. We’re SOOOOO fucked!

  2. Gene108

    Could be as simple as the justices are old and do not grok how “facts” can be cooked up in the internet age.

    • Gene108;

      Never attribute to alzheimer’s what can be attributed to malice and pandering. Tony Ducks and Clarabelle were the only hardcore ideologues on the court before Bush put Roberts and Alito up there.

    • That’s pretty damn scary in itself. The oldsters on the court all have young clerks who should be savvy to this stuff.

  3. joseph stans

    The cascade of fuckery proceeds from Scalia, Roberts, Alito and Thomas. Never in recent memory has the court assembled such a gaggle of nitwits as these four.

  4. Randy

    “Never attribute to alzheimer’s what can be attributed to malice and pandering.”-DC. Sort of the Occam’s Razor of Political Discourse. I wish I could clearly articulate this psychological conflict I have in which I keep reading these stories and thinking “Why is anyone surprised. How could anyone be so fucking naive” but then because the narrative seems so sophomoric (“I mean for god’s sake they’re not even trying”)I persuade myself it couldn’t possibly be made up. I mean has American/Western Political maneuvering become a B movie dystopian nightmare a la “The Hunger Games.”?

  5. jazzbumpa

    It sounds like partisan hackery to say it this way, but it’s because they are right wingers. IOKIYAR ,always and evrywhere. Evidence only matters if it supports the party line. Contrary evidence is ignored, at best.

    Progressives just do not operate this way.


  6. CB

    “The oldsters on the court all have young clerks who should be savvy to this stuff.”

    Never assume that the tech-savvy young actually use this expertise for productive purposes. They’re just college students, all growed up. Vetted information means nothing to them, unless they know that their job performance might hang in the balance, they way their gpa is supposed to in school.

    Just as college professors don’t do nearly enough checking of bibliographies and text that sounds too good to be true, I’m sure the Supremes behave in like manner. In both scenarios, the adults in the room ASSUME that the young folk know what they’re doing, and just don’t pay adequate attention.

    I’ve been watching this happen for the last two plus decades.

  7. Kosh III

    All the more reason to impeach Alito, Roberts and maybe Scumlia.
    But don’t hold your breath, no D has the courage; it might piss off voters who will never vote for them anyway.