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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!

Despite the fact that the Supreme Court has held that we hve a Second Amendment right to *possess* a firearm, the DOJ and most state governments have continued to take the position that there is no right to *acquire* arms. Now, you may ask yourself, how is it possible to possess a gun, when you don’t already have one. And, as transactions go, acquiring arms entails the right of one party to sell/give the gun, and the other party to buy/receive the gun. It takes two to tango. I discuss this at length in my article on 3D-printed guns.

Through unique circumstances, both Dick Heller and Otis McDonald were attempting to register guns they already owned, but were illegal to keep functional under the law. The Supreme Court, in neither case, had the occasion weigh in squarely on whether or not the Second Amendment protects the right to acquire arms. Justice Scalia in Heller did say that Second Amendment should not “cast doubt” on “laws imposing conditions and qualifications on the commercial sale of arms.” You could (as the government has) read that to say that means acquiring arms is outside the scope of the Second Amendment. I read it differently–if the “sale of arms” was not a constitutional right, it could be prohibited altogether under the police power, and not just limited by “conditions and qualifications.” The need to qualify a right dictates the existence of the right in the first place.

In Ezell v. City of Chicago, the 7th Circuit seems to have read this language in a similar fashion. “The right to possess firearms for protection implies a corresponding right to acquire and maintain proficiency in their use; the core right wouldn’t mean much without the training and practice that make it effective.” The key word is “acquire.”

Recently, a federal court in California reached a similar conclusion. California imposes a 10-day waiting period to buy a gun. However, this same waiting period applies even if a person has already registered guns in the past, or even those who have a concealed carry permit. A federal court struck down this law, as imposing a burden on the Second Amendment right.

Pivotal in the analysis, is the court recognized that the Second Amendment applies not just to guns you already own, but the process of obtaining new guns.

When the 10-day waiting period laws apply, they prohibit every person who purchases a firearm from taking possession of that firearm for a minimum of 10 days. One cannot exercise the 24 right to keep and bear arms without actually possessing a firearm. Cf. Andrews v. State, 50 Tenn. 165, 178 (1871) (“The right to keep and bear arms necessarily involves the right to purchase them . . . .”). Also, in some cases, due to additional costs and disruptions to schedules, the 10-day waiting period may cause individuals to forego the opportunity to purchase a firearm, and thereby forego the exercise of their Second Amendment right to keep and bear arms. Therefore, the 10-day waiting period burdens the Second Amendment right to keep and bear arms. 

The court also found that the “no doubts” passage from Heller only finds that certain “qualifications” are constitution, and other “conditions” are not. The 10 day waiting period is not lawful.

In comparison to Nordyke and a 10 plain reading of Heller‟s language, it is not clear to the Court that a 10-day waiting period would qualify as a commercial regulation. Defendant cites no comparable commercial laws that apply to other goods and that require an individual to wait around 10-days before completing a purchase. The Court is not satisfied that Defendant has shown that the 10-day waiting period is one of Heller‟s envisioned conditions and qualifications of a commercial sale.

I think this decision gets it right. The right to possess arms entails a right to acquire arms, which protects both the buyer and the seller. This right can be regulated, but it must be reasonable. Forcing someone who has already gone through background checks, and already has other licensed guns, to wait 10 days, is unreasonable.

After NFIB v. Sebelius, Jan Crawford, and others reported that the Scalia-Kennedy-Thomas-Alito bloc was incensed at the Chief Justice. So much so that they didn’t even cite his opinion. (In my book, I didn’t quite buy into this narrative, but it prevailed)

Yet, the Justices consistently said in press statements that there isn’t such anger. Justice Scalia did an interview on CNN in July 19 with Piers Morgan, where he emphatically rejected that there was a “falling out” with the Chief.

But now, Justice Ginsburg suggests otherwise. In her interview with Marcia Coyle, she notes that the Chief’s decision “distanced” himself from the Court:

NLJ: The chief justice will begin his 10th term in October. Has he changed in any way over the years here?

GINSBURG: He was always good at running our conferences. He is a little more relaxed than the old chief. He is a great representative of the court because he can give the best two-minute speech. I love it when he gives the closing remarks at the court’s musicale because I wonder what is he going to come up with and it is always something terrific. And of course, he did distance himself from the court in the health care decision. He knew he was going to take a lot of criticism from his home crowd for that and I think the same thing for the Massachusetts abortion-clinic case.

He is very smart and he writes well-written opinions.

RBG already cast Justice Sotomayor in a bad light. Here, she highlights fractures within the Court with respect to the Chief, and his NFIB dissenting colleagues. This is in very poor taste. I’m not sure what she, or the Court, stands to gain from that.

Further, RBG continues to focus on how the Court reacts to public opinion, noting that Roberts knew “he was going to take a lot of criticism from his home crowd for that,” with “for that” referring to upholding the law. The study of the impact of the media on the Chief’s decision was something I’ve written a lot about. While the Chief (wisely) has not commented, RBG seems to think this was at least something on his mind.

One of the most jarring, and dare I say demeaning, lines in Justice Ginsburg’s interview with Marcia Coyle was not directed at any of the conservative Justices, but her own colleague on the left, Justice Sotomayor. Usually, the issue of opinion assignment is one best left for speculation. Maybe, we think a Justice asks for an assignment because he or she has a special interest, or expertise, or passion in a certain area. Or maybe an opinion was assigned to the swing vote to keep a majority together. These are the kinds of things I am most comfortable finding out years later when papers are released.

But Justice Ginsburg’s explanation for why Justice Sotomayor wrote the dissent in Schuette (which only RBG joined) was disquieting–Sotomayor was upset by press reports about her in Fisher, and wanted to show people what she really thought about affirmative action.

NLJ: As the senior justice in dissent, you assigned to Justice Sotomayor the dissent in the court’s decision upholding Michigan’s constitutional amendment prohibiting the consideration of race in higher education. You and she were the only dissenters. She had joined the 7-1 decision two terms ago in the University of Texas case where race was considered as a factor in the admissions policy. The court sent that case back to the lower court to apply a stricter type of strict scrutiny. Why did you assign the Michigan dissent to Justice Sotomayor?

GINSBURG: She cared deeply about the issue. She might have been distressed about some of the reports in the Fisher [ v. University of Texas] case where she went along with the court. So if anybody had doubts about her views on affirmative action she wanted to quell them, which she certainly did.

It was an agreement between the two of us that she would write.

Oh my. This paints Justice Sotomayor in such a negative, damaging, and weak light.

First, what does it mean that she “went along with the court.” She joined the majority opinion. That’s a vote, not passive acquiescence. Granted the opinion was narrow, but Sotomayor could have dissented or concurred if she wanted too. RBG dissented. But Sotomayor didn’t. Perhaps the Justices wanted to build consensus for a narrow opinion. But that’s a vote! Why would Ginsburg characterize her in this manner?

Later in the interview, Ginsburg also diminishes Sotomayor’s vote by noting that she didn’t actually agree her decision to grant the stay in Little Sisters of the Poor, but then doubled back in Wheaton College.

She granted the stay in Little Sisters of the Poor [raising similar objections to the letter] because she was the Tenth Circuit justice. I think it was another case where she wanted to make clear what her view was. 

(I’ll come back to this in a different post).

Second, if true, it is scary that she is so responsive to press reports, that she wants to write a vigorous dissent to set them right. Justice Scalia and Thomas go out of their way to say they don’t read press accounts of the Court. They are lambasted for being out of touch. But that’s the point. They want to be insulated. Is Sotomayor that fragile and thin-skinned that she feels compelled to write an opinion based on what the media says. I would hope that a Justice would have more fortitude than to be so easily impacted by the press. She shouldn’t have to “quell” “doubts” of the chattering class.  And here, the coverage was mild. Compared that to the full court press on the Chief in NFIB!

But you know what? It worked. Attorney General Holder, with the backing of the White House, spoke glowingly of Sotomayor’s dissent. It was the talk of the town in D.C. And the press now knows they can impact a Justice. It’s one thing for us to speculate about it. But now the Justices confirmed it.

Third, this brutus attack comes from her friend. Et Tu Ruthy?

My opinion of Sotomayor and Ginsburg was significantly weakened because of this interview. Sotomayor, for being such a pushover from the media, and Ginsburg for making an unforced error and selling out her friend.

When McCullen v. Coakley was decided, I was somewhat surprised that Justice Ginsburg did not write separately. Though the opinion was, on its face unanimous, I agree with Justice Scalia that it was a “specious unanimity.” But, don’t worry folks. There was a Justice Ginsburg concurring opinion. You won’t find it in the U.S. Reports, or even her personal archives. You’ll find it in an interview she gave with Marcia Coyle. You see, Justice Ginsburg concurred after the fact to stress that the key factor was that the regulation was “content neutral.”

NLJ: You have called the decision striking down the abortion-clinic buffer-zone law in Massachusetts a “good decision,” which you joined. Why did you join the chief justice’s opinion?

GINSBURG:It made a very important case that protests before abortion clinics, that regulation of those protests are content-neutral. That was the most important thing to me about the chief’s decision. The problem didn’t exist for hospitals, in general. The problem existed for one kind of place, and the legislation was aimed at ensuring access. Where Massachusetts went wrong was it went much further than necessary.

My initial view was this is permissible legislation but if you looked at the record, it was so sparse. I think at four of the clinics they had no evidence of any kind of disturbance. Then the video that they showed compared to the demonstrations that have occurred elsewhere, these were rather mild. It wasn’t necessary to have that 35-foot zone. And I think Massachusetts has gone back and changed it.

This would be the kind of statement we would find in a concurring opinion. We didn’t get that in court, but we find it after the fact.

RBG also offered these concurring thoughts on Noel Canning:

NLJ: The buffer-zone decision was unanimous in the judgment, but not in the opinion. Justice Antonin Scalia wrote a concurrence that was more of a dissent and he accused the court of “specious unanimity.” That case and the decision in the recess appointments clause challenge—also unanimous in the bottom-line judgment, but not in the opinion—gave rise to claims of “fauxnanimity.” Were they “specious” unanimous decisions?

GINSBURG: If the notion was the court was trying to appear unanimous when it wasn’t, that is not true. In Noel Canning [ the recess-appointments case], the court could not have disagreed more sharply on what is a recess that counts and could a vacancy occur before a recess. But when dealing with rules that Congress sets for the way it operates, the court has always been deferent to that. So I wouldn’t use the word ‘specious.’

I think some of the reports about Noel Canning, some of the headlines—’Court rejects Obama’s nominees—they missed what was really important about Noel Canning. The administration prevailed on the first two questions. It reminded me of when [news reports] decided Souter and Breyer were with the court in Bush v. Gore.

A Justice’s vote should speak for itself. I don’t like this ex post rationalization.