It's bad enough that recent Supreme Court decisions have seemed particularly
partisan. Now the
New York Times is reporting that amicus briefs (also known as
friend-of-the-court briefs) are increasingly being used and cited in decisions. More and more of these briefs are being submitted as well.
The Supreme Court received more 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.
More information the better, right? Right????
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.
Seriously?
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
Historically, these briefs are to be helpful but are not supposed to find their way into rulings—as the factual information in a case should be contained in the already vetted lower courts decisions. Judge Alito, what say you?
We do not generally entertain arguments that were not raised below and are not advanced in this court by any party.
Allison Orr Larsen, a law professor at the College of William and Mary who has done the
study cited here, says this is not true:
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.”
This is very depressing. It shows a lack of real intellectual vigor on the parts of the justices and/or an inability to distinguish between fact and fiction.