In Nken, the OSG made a new factual representation on appeal and cited nothing in the record to support it. Moreover, the government even now has come forward with nothing of consequence to support its representation beyond the facts set forth in the e-mails. These highly unusual circumstances render the government’s ‘slippery slope’ argument unavailing.”
That stuff can be without a basis in fact. The SG has corrected errors in the record below. I doubt there is any intentional fudging of the record–more likely some other government agency misstated the facts, and the SG relied on it. But, doesn’t that support the argument that appellate courts should be bound by facts in the record below that went through the adversarial process (I’ve blogged about this before, and I can’t seem to find that post; this may be it, but I doubt it).