In it, but not of it. TPM DC
Justices often rely on data provided in amicus briefs — legal arguments submitted by outside advocates typically pushing for a certain outcome in the case. Information contained in these documents are cited in legally binding Supreme Court decisions.
The problem is that the data are not always accurate.
A study to be published in the Virginia Law Review by Allison Orr Larsen, a law professor at the College of William and Mary, sheds light on this phenomenon. It provides examples of justices citing dubious "facts" in amicus briefs which rely on assertions that are unsourced, unverifiable or plainly inaccurate.
"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," wrote Adam Liptak, who covers the Court for the New York Times.
Here are 7 examples since 2007, raised by Larsen.
People line up outside the Supreme Court to listen to arguments on Tuesday, April 29, 2014, in Washington. (AP Photo)
An unverifiable source
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.
No source at all
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.
A false government claim
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.
Chief Justice John Roberts, left, and Associate Justice Antonin Scalia sit for a new group photograph, Tuesday, Sept. 29, 2009, at the Supreme Court in Washington. (AP Photo)
A curiously timed blog post
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.
Consider the source
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.
A discredited expert
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.