The dubious sources of some Supreme Court “facts”

September 1

The NYT‘s Adam Liptak has a very interesting story about how some facts make their way into Supreme Court opinions.  He writes:

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

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.

The use of amicus briefs to put potentially relevant facts before the justices appears to be on the upswing, as is amicus participation generally.  Over 80 amicus briefs were filed in Hobby Lobby.  Many of these briefs made factual claims, as do amicus briefs in many cases before the court. Yet not all factual claims are well sourced, and some may be quite dubious.  Whereas parties to the litigation have the opportunity to respond to claims made in the principal briefs, they are not always able to respond to claims raised solely by amici.  And, as Liptak’s article shows, sometimes poorly sourced facts find their way into opinions.

The use of amicus briefs to put questionable facts or arguments in front of the Court is not new, however.  A century ago, Luis Brandeis submitted the first so-called “Brandeis brief” in Muller v. Oregon, seeking to convince the Court that a maximum-hour law for women should be upheld.  (See also here.)

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.”  Further, while Brandeis’ Muller brief is identified as the first such brief, but as Noga Morag-Levine documents, litigants and others had been placing “extra-legal evidence” before courts for some time.  Thus, the practice of using dubious facts to support claims in the Supreme Court is at least 100 years old.

Jonathan H. Adler teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law, where he is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation.
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Jonathan H. Adler · September 1