Did you know that the U.S. Supreme Court — uniquely among all Federal courts — relies heavily on “friend of the court” briefs for facts it uses in determining its ruling in many controversial cases? Facts that are often hand-picked by those submitting the briefs to prove a point despite their demonstrable inaccuracy or unreliability? “Facts” that often are taken from studies done by the groups submitting them, never vetted by experts, published only on the Internet and written specifically to influence the Court on a particular case?
Neither did I until I read — and confirmed — this New York Times op-ed piece by the Times’ Supreme Court reporter, Adam Liptak. It has shaken to the foundations my previously firmly held belief that the Court, while its reasoning might be strongly influenced by politics in ways never envisioned by those who wrote and championed our nation’s founding, was at least dealing with objective, proven facts. After all, each justice has four full-time clerks who can investigate facts and the court rarely takes on more than 75 cases in a year. Do the math.
But the Court nonetheless accepts what are called amicus briefs from almost any interested party who wants to go to the time and expense to file one. These briefs have no real legal standing; justices are free simply to ignore them. In most lower court cases, the facts of the case are considered based on the record submitted, on evidence presented and vetted by the judge(s) or jury(ies) as a result of the adversarial process. Except in a judge-only trial, the jury is the determiner of facts of the case and the judge is the determiner of how the law should be applied to those facts. All the way through the appellate process, the rule is that appellants (and for that matter appellees) cannot introduce new facts without meeting rigorous requirements.
Not so with the Supremes. When a case comes before them, they can accept — and even solicit — amicus briefs from any interested (or not-so-interested) party they are willing to hear. And these briefs are often, it appears, places where new facts are introduced in an effort to sway the appellate process.
Now, given that the U.S. Supreme Court is the court of last resort, I can see where allowing the introduction of new facts into the process may be necessary or appropriate. But when they are, there must really be some way of vetting — of researching and confirming — these facts for accuracy and relevance.
In his excellent piece on the Times, Liptak cites numerous examples of cases which have turned on “facts” that were, at best, dubious.
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.
Or this one:
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.
That “fact” was cited in an amicus brief but it was not accompanied by any citation.As Daniel Patrick Moynihan famously said, “You are entitled to your opinion. But you are not entitled to your own facts.” And yet, according to Liptak, SCOTUS time and time again relies on undocumented, unproven and baldly asserted facts from dubious and often untraceable sources. (Liptak cites one amicus brief which cited a fact which was based only on a blog post from a blog that had been discontinued.)
It is difficult to project the best and most effective way of preventing this unbelievable tampering with the system of justice in our nation’s highest court. But what is demonstrably provable is that failing to do so will greatly weaken the public’s confidence in the Court, which now “enjoys” only a 35% favorability rating.
(I’m sort of hoping the Court will see this blog cited in an amicus brief and not recognize that: (a) the “fact” that this behavior will greatly weaken the public’s confidence in the Court, and that it is actually its disapproval rating that is at 35%; it actually quite mysteriously enjoys a 56% favorability rating in the last poll I could find.)