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.
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.
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.