At one point in [Oklahoma Solicitor General Patrick] Wyrick’s argument in defense of the use of the drug, [Justice Sonia] Sotomayor, essentially, told the state’s lawyer that he had lied in his briefs before the court.
“I am substantially disturbed that in your brief you made factual statements that were not supported by the sources [you cited], and in fact directly contradicted,” she told him. “So nothing you say or read to me am I going to believe, frankly, until I see it with my own eyes in the context, okay?”
Sotomayor was then given wide berth by her colleagues to go into detail to question him regarding some of those examples, from the state’s characterization of the Food and Drug Administration’s description of the drug to its characterization of one of the studies about the drug on which the state relied.
Sotomayor rattled off three examples in which the state’s brief had made arguments that weren’t true. (Read the transcript here.)
This is refreshing. It’s nice to see a Supreme Court justice dispense with the niceties and call out dishonesty from government officials when she sees it.
Because the court sees plenty of it. In September, New York Times Supreme Court reporter Adam Liptak wrote an important article about the fact-challenged amicus briefs that the justices and their clerks often rely upon to educate them in complicated cases.
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 . . .
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.
And it isn’t just empirical data. In January, I pointed to some convincing evidence that the justices frequently make assumptions about law enforcement based on assertions from law enforcement briefs that aren’t supported by any research (or in some cases, directly contradicted by research). Part of the problem there is that only two of the justices have any experience in criminal justice, and only one has substantial experience with a local criminal justice system. That justice: Sonia Sotomayor.