Drudge Retort: The Other Side of the News
Tuesday, September 02, 2014

Adam Liptak, New York Times: The Supreme Court received more than 80 friend-of-the-court briefs in the Hobby Lobby case. Most of these filings, also called amicus briefs, were dull and repetitive recitations of familiar legal arguments. Others stood out. They presented fresh, factual information that put the case in a broader context. The justices are hungry for such data. Their opinions are increasingly studded with citations of facts they learned from amicus briefs. But this is a perilous trend, said Allison Orr Larsen, a law professor at the College of William and Mary. "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.


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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.


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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 reliance on 'faith-based' theory is going to be the death knell for this nation. Facts have to be proven or based on accepted scientific theories or incontrovertible evidence, not carefully massaged and nuance d subjective interpretations specifically invented to persuade the intended audience. We have to stop ignoring the truth in order to perpetuate misleading information for the sake of political goals. Our future depends upon it.

#1 | Posted by tonyroma at 2014-09-01 09:37 PM | Reply | Flag:

Consider these examples.

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.

"Where this number comes from is a mystery," Professor Larsen wrote. "It is asserted in the brief without citation."

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.

In an interview, Professor Larsen said she was struck by how often justices cited the amicus briefs themselves as sources of authority, as opposed to the materials collected in the briefs. "It really makes you wonder how much digging the justices are doing," she said.

To me, this is one of the reasons many SCOTUS decisions are held in contempt by many rational people. Jurists shouldn't quote ideological rhetoric from the bench when their job is to access the constitutionality of the cases already adjudicated beneath them. The SCOTUS's job is not to entertain new facts and spin, it's to discern either the legality or illegality of the decision brought before them.

#2 | Posted by tonyroma at 2014-09-01 09:55 PM | Reply | Flag:

This is a scandal, but one that is too esoteric for most people to grasp.

Our highest court is not performing due diligence.

I'm certainly no expert, don't think our legal system allows a case to be re-tried simply because some facts developed in the case turned out to be lies. And who would you appeal to anyway, the highest court has already spoken. Coupled with the deference our common law system places on precedent, this is a recipe for systemic injustice.

If there's a way to petition government to redress these grievances, count me in.

#3 | Posted by snoofy at 2014-09-02 12:39 AM | Reply | Flag:

7 Times The Supreme Court Has Relied On Sketchy 'Facts'

1. In Caperton v. AT Massey Coal -- a 2009 case in which the Court said the constitution required a state judge to recuse himself due to a "probability of bias" given his deep financial ties to one of the parties -- Chief Justice John Roberts argued in his dissent that the judge's participation in the case did not violate Due Process. He argued that there were "numerous examples of judicial elections in which independent expenditures backfired and hurt the candidate's campaign."

The chief's evidence? An amicus brief citing a law review article, which cited an email from a state judge that was not publicly available.

2. In a 2012 decision in Florence v. Board of Chosen Freeholders, Justice Anthony Kennedy wrote for a 5-4 majority that prison strip-searches were constitutional even in the absence of evidence that the person was carrying contraband. Kennedy argued, among other things, that the number of gang fights in prisons was rising.

For his evidence, Kennedy cited an amicus brief by a policeman's association that made the assertion without citing a source.

3. In NASA v. Nelson, decided in 2011, Justice Samuel Alito wrote for the Court that NASA's policy of conducting background checks on contract workers did not infringe on privacy rights. Alito shot down the plaintiffs' claim that their privacy was violated, arguing that "millions of private employers" used background checks.

His evidence was dicey: an amicus brief in which one association declares itself to be among "88% of US companies" that perform background checks. Larsen puzzled over that statistic: "Where this number comes from is a mystery. It is asserted in the brief without citation," she wrote, arguing that other evidence suggests the number is notably lower.

4. In Nken v. Holder, Roberts in 2009 decided for the Court that removing a non-citizen from the country while the person's case was being appealed did not constitute irreparable injury. He argued that it was U.S. policy to facilitate the return of the person to the country if the individual won the case.

For his evidence, the chief justice cited a brief by the U.S. solicitor general, arguing against the plaintiff, which contained that statement of federal policy. Immigration lawyers later disputed claim and demanded evidence; in response, the solicitor general's office backed off and submitted a correction to the Supreme Court. But that didn't change the ruling.

#4 | Posted by tonyroma at 2014-09-02 03:48 PM | Reply | Flag:

5. In a 2013 decision in Kirtsaeng v. John Wiley & Sons, Justice Stephen Breyer wrote the the Court that a Thai international student studying in the U.S. was legally allowed to resell textbooks on eBay that were sent to him from Thailand. He cited a brief from the American Library Association which said that "library collections contain at least 200 million books published abroad."

But the 200 million figure, which revealed the magnitude of the issue, was based on an unverified estimate in a blog post published by a librarian while the litigation was pending; curiously, the blog was discontinued after the lawsuit ended.

6. In the 2010 case Holder v. Humanitarian Law Project, Chief Justice Roberts wrote for the Court upholding a law banning "material support" for groups linked to designated terrorists. In rejecting the First Amendment challenge, Roberts cited a brief from the Anti-Defamation League, a civil rights group whose mission it is to fight anti-Semitism, which said money raised for purportedly charitable reasons have been funneled to terrorist entities.

The problem is the brief relied on fact sheets authored by ADL itself and posted on its website. As Larsen argued, ADL is a reputable group but it had a clear bias in the case and had lobbied for the laws in question, making it "hardly a neutral expert" in the debate.

7. In the 2007 case Gonzales v. Carhart upholding bans on late-term abortion, Kennedy wrote for the Court that "it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow."

His citation was quite sketchy: an amicus brief which relied on the work of David Reardon, an anti-abortion advocate with a PhD from an uncredited and now-shuttered college in Hawaii. Reardon is known for his highly controversial writings seeking to reframe the abortion debate in terms of psychological damage to women, with claims that have been rejected by authorities such as the American Medical Association and American Psychological Association. talkingpointsmemo.com

#5 | Posted by tonyroma at 2014-09-02 03:49 PM | Reply | Flag:

Regarding #3
I am not sure where he got his info, it would be nice to reference it, but its not far off the mark, and easy to find....

SHRM reports that more than 85 percent of large companies and a rapidly growing number of smaller employers perform some form of background screening today.

#6 | Posted by AndreaMackris at 2014-09-02 04:14 PM | Reply | Flag:

From that link, this would have been relevant:

"But surprisingly, only 12 percent of respondent companies screen all existing employees, and only 10 percent screen all employees and non-employees, including temporary labor, contractors, and vendor employees."


"Thirty-six percent of respondents screen their temporary labor, 25 percent review contractors and 14 percent require vendor employees to be screened."

#7 | Posted by snoofy at 2014-09-03 12:20 AM | Reply | Flag:

Roberts & Co have an agenda. They don't care about facts or Democracy. In 2000 they spite in Democracies face.

#8 | Posted by nutcase at 2014-09-03 01:59 AM | Reply | Flag:

"The reliance on 'faith-based' theory is going to be the death knell for this nation. Facts have to be proven or based on accepted scientific theories or incontrovertible evidence, not carefully massaged and nuance d subjective interpretations specifically invented to persuade the intended audience" - Tonyroma

Nicely put.

#9 | Posted by SLBronkowitz at 2014-09-03 06:37 AM | Reply | Flag:

Everyone already knows that the corporate five have already decided most cases before they even hear them, to concern one's self with the ridiculous justifications for their ridiculous decisions is a complete waste of time and energy. One would have to pretend that they actually decide cases based on precedent and law which everyone knows is not the case.

#10 | Posted by danni at 2014-09-03 08:04 AM | Reply | Flag:

They are great as far as I can see.

The Hobby lobby case won because Obama violated federal law.

#11 | Posted by tmaster at 2014-09-03 09:08 AM | Reply | Flag:

As long as those facts were gleaned from Wikipedia, it is OK. Everyone knows that it's an impeccable source...

#12 | Posted by catdog at 2014-09-03 09:14 AM | Reply | Flag:

Once again Ds loose out because they're not as willing to make ---- up as their opponents are. Like #10 says though, it probably doesn't matter. The corp 5 have their minds made up and aren't going to be confused by facts, real or made up.

#13 | Posted by SomebodyElse at 2014-09-03 09:15 AM | Reply | Flag: | Newsworthy 1

A North Carolina death row inmate exonerated by DNA evidence on Tuesday was once held up by Supreme Court Justice Antonin Scalia as an example of someone who deserved to die.

When the court declined to review an unrelated death row case out of Texas in 1994, Justice Harry A. Blackmun issued a dissenting opinion arguing that capital punishment is cruel and unusual, and therefore unconstitutional.

Scalia answered back with an opinion of his own:

"For example, the case of an 11-year-old girl raped by four men and then killed by stuffing her panties down her throat," Scalia wrote in Callins v. Collins. "How enviable a quiet death by lethal injection compared with that!"

He was referring to Henry Lee McCollum, who at the time had already been on death row for 12 years. McCollum's conviction was overturned on Tuesday when DNA evidence implicated another man in the case.

McCollum had been on death row for almost 30 years.

from Huffpost

#14 | Posted by nutcase at 2014-09-03 09:40 AM | Reply | Flag: | Newsworthy 1

The U.S. constitution has always been nothing more than a marketing document. Plastic wrap for fascism.

#15 | Posted by Shawn at 2014-09-03 12:47 PM | Reply | Flag:

This is a scandal, but one that is too esoteric for most people to grasp.

A hit and a miss. If this is a "scandal" it is about 100 years old. It traces back to the so called "Brandeis brief.". The nuance needed to grasp the subject is clouded with conflating politics with law.

#16 | Posted by et_al at 2014-09-03 01:01 PM | Reply | Flag:

The nuance needed to grasp the subject is clouded with conflating politics with law.
#16 | Posted by et_al

"Citation needed"

#17 | Posted by snoofy at 2014-09-03 02:38 PM | Reply | Flag:


#1, 8, 10, 13.

#18 | Posted by et_al at 2014-09-03 04:13 PM | Reply | Flag:

How about Bush v. Gore?

#19 | Posted by snoofy at 2014-09-03 04:21 PM | Reply | Flag:

What about it. How does it relate to whether this non-scandal "...is too esoteric for most people to grasp."

#20 | Posted by et_al at 2014-09-03 04:47 PM | Reply | Flag:

Politics and law often conflate themselves.

#21 | Posted by snoofy at 2014-09-03 04:59 PM | Reply | Flag:

But I do agree that some people's Outrage! will be more a matter of how they feel about the decision which relied on questionable data. Not the reliance on questionable data itself. Process vs. outcome.

#22 | Posted by snoofy at 2014-09-03 05:04 PM | Reply | Flag:

The nuance needed to grasp the subject is clouded with conflating politics with law.


I find that extends to most areas of law, not just this issue.

Jurists are far too frequently judged not by how they apply statutes or determine whether or not laws are in violation of the Constitution, but instead they are judges solely by the political outcome that their opinions create.

Danni is a great case in point - she frequently blames 5 of the current SCOTUS justices for corporate personhood which was established over a century ago. To be fair, Danni is far from the only person who judges court opinions based upon political outcomes.

#23 | Posted by JeffJ at 2014-09-03 05:08 PM | Reply | Flag:

Yes, which sometimes requires the SC to address the issue.

#24 | Posted by et_al at 2014-09-03 05:16 PM | Reply | Flag:

The issue here is akin to fruit of the poisonous tree. Decisions based on misinformation which become law and establish precedent. To my knowledge there is no mechanism to appeal a Supreme Court decision in which the opinion relies on a fact which turns out to be a falsehood. This is a structural limitation that the Justices should be aware of, and that awareness should compel them to perform extreme diligence when relying a brief that clearly came from a party that perceives a (political) stake in the outcome.

If they're not doing that, Houston, we have a problem.

#25 | Posted by snoofy at 2014-09-03 08:01 PM | Reply | Flag: | Newsworthy 1

If they're not doing that, Houston, we have a problem.

Agreed, generally, however the question is whether the "misinformation" is determinative or merely background or supportive of the conclusion. If I did the math correctly, in my head as I read the paper, determinative is a small percentage. Even then the author finds it difficult to make that determination.

The suggestion that the Court, or any appellate court, exercise "extreme diligence" in vetting amici is antithetical to its role. Those courts are not fact finders. They review the legality of a particular outcome. Are you suggesting another level of "fact finding" that is traditionally the purview of trial courts? That, alone, is problematic.

In any event, the paper raises some interesting questions and offers some practical solutions. I question whether the harshest critics will invest an hour or so to read the paper but will instead rely on a pundit's analysis, their own political hackery and then smugly sling criticism.

#26 | Posted by et_al at 2014-09-03 11:34 PM | Reply | Flag:

The suggestion that the Court, or any appellate court, exercise "extreme diligence" in vetting amici is antithetical to its role.
#26 | Posted by et_al

Maybe it once was, but is still so?
As Allison Orr Larsen writes in her abstract:
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.

I wish I had time to read more than the abstract.

#27 | Posted by snoofy at 2014-09-04 12:06 AM | Reply | Flag:

Maybe it once was, but is still so?


As Allison Orr Larsen writes in her abstract...

The paper reports her analysis of the who, what, when, where, why of amicus briefs. She also offers some solutions. At least, read the proposed solutions, beginning at pdf page 48.

#28 | Posted by et_al at 2014-09-04 01:45 AM | Reply | Flag:

I'll give it a look. I'll be on the train for a while in the morning so maybe then.

In my field, the problem with the court relying on partisan briefs that might not even be true is called "garbage in, garbage out."

But "relying" is probably too strong a word.

#29 | Posted by snoofy at 2014-09-04 02:21 AM | Reply | Flag:


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