“The Trouble with Amicus Facts”

March 25th, 2014

In a new article in the Virginia Law Review, titled “The Trouble with Amicus Facts,” Alli Orr Larsen continues her important series of work on the “facts” relied on by the Supreme Court here is the abstract:

The number of amicus curiae briefs filed at the Supreme Court is at an all-time high. Most observers, and even some of the Justices, believe that the best of these briefs are filed to supplement the Court’s understanding of facts. Supreme Court decisions quite often turn on generalized facts about the way the world works (Do violent video games harm children? Is a partial birth abortion ever medically necessary?) and to answer these questions the Justices are hungry for more information than the parties and the record can provide. The consensus is that amicus briefs helpfully add factual expertise to the Court’s decision-making.

The goal of this article is to chip away at that conventional wisdom. The trouble with amicus facts, I argue, is that today anyone can claim to be a factual expert. With the Internet, factual information is easily found and cheaply manufactured. Moreover, the amicus curiae has evolved significantly from its origin as an impartial “friend of the court.” Facts submitted by amici are now funneled through the screen of advocacy. The result is that the Court is inundated with eleventh-hour, untested, advocacy-motivated claims of factual expertise. And the Justices are listening. This article looks at the instances in recent years when a Supreme Court Justice cites an amicus for a statement of fact. It describes the way the brief, rather than the underlying factual source, is cited as authority and the failure of the parties to act as an adequate check. I challenge this process as potentially infecting the Supreme Court’s decisions with unreliable evidence, and I make suggestions for ways to reform it. It is time to rethink the expertise-providing role of the Supreme Court amicus and to refashion this old tool for the new purpose to which it is currently being used.

And from the article:

And the Court is attempting to do so. My research shows that one in every five citations to amicus briefs by the Justices in the last five years was used to support a factual claim– something I define as a theoretically falsifiable observation about the world. Of those citations, several surprising patterns emerge. Less than a third of the factual claims credited by the Court were contested by the party briefs. And more than two thirds of the time the Justice citing the amicus brief for a fact cites only the amicus brief as authority – not any accompanying study or journal citation from within the brief. This indicates that the Justices are using these briefs as more than a research tool. The briefs themselves ARE the factual authorities, and the amici are the experts.  …

This change matters because the studies and statistics and articles marshaled by these groups to support factual assertions are selected by those with a “dog in the fight.” The factual sources are chosen by amici, in other words, for reasons other than that they are the most peer-reviewed, industry standard, most accurate state of our knowledge today. And with the vast amount of information and studies available online now, it is not hard to assemble evidence to support a pre-existing point of view.22

Very important work.