One of my longest standing gripes has been briefs submitted to the Supreme Court that offer facts nowhere to be found in the record. These are facts that weren’t accepted by the lower court, contested by opposing counsel, or even verified or vetted. At times, these facts were created for the purpose of litigation! Even worse, is when the Justices cite these dubious facts, as if they’re gospel. Enough already!

Adam Liptak in the Times shines a light of this quandary, with a focus on another excellent article by Allison Orr Larsen, which I discussed here.

“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.

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.

The phenomenon is novel. “The U.S. Supreme Court is the only American judicial entity that depends so heavily on amicus briefs to educate itself on factual matters,” Professor Larsen wrote.

The trend is at odds with the ordinary role of appellate courts, which are not supposed to be in the business of determining facts. That is the job of the trial court, where evidence is submitted, sifted and subjected to the adversary process.

Appellate courts traditionally take those facts, fixed in the trial court record, as a given. Their job is to identify and apply legal principles to those facts.

Adam also highlights some recent discussions from the Justices over the value, or lack thereof, of these factual briefs:

Justice Antonin Scalia made this point in a 2011 dissent chastising the majority for its blithe acceptance of “government-funded studies” that “did not make an appearance in this litigation until the government’s merits brief to this court.”

But “Supreme Court briefs are an inappropriate place to develop the key facts in a case,” Justice Scalia wrote. “An adversarial process in the trial courts can identify flaws in the methodology of the studies that the parties put forward; here, we accept the studies’ findings on faith, without examining their methodology at all.”

The net result, he said, is “untested judicial fact-finding masquerading as statutory interpretation.”

The article also highlights some of the more egregious citations:

In a 2012 decision allowing strip searches of people arrested for even minor offenses as they are admitted to jail, Justice Anthony M. Kennedy cited an amicus brief to show that there are “an increasing number of gang members” entering the nation’s prisons and jails. The brief itself did little more than assert that “there is no doubt” this was so.

And in a 2013 decision, Justice Stephen G. Breyer cited an amicus brief to establish that American libraries hold 200 million books that were published abroad, a point of some significance in the copyright dispute before the court. The figure in the brief came from a blog post. The blog has been discontinued.

Stick to the facts!