The Trouble with Amicus Facts
September 2, 2014 7:17 AM   Subscribe

When the Supreme Court agrees to hear a case, they often receive dozens of amicus briefs, or "friend of the court" briefs; SCOTUS "opinions are increasingly studded with citations of facts they learned from amicus briefs." "The trouble with amicus facts... is that today anyone can claim to be a factual expert."
posted by roomthreeseventeen (20 comments total) 13 users marked this as a favorite
Expert trucks a comin'

(Note: Can't find the expert truck but it self, so the founding fathers flag sketch (as told by the "expert") after the song will have to suffice.)
posted by symbioid at 7:26 AM on September 2, 2014

I blame the whacky court procedural My Cousin Vinny, and Mona Lisa Vito.
posted by OmieWise at 7:29 AM on September 2, 2014 [1 favorite]

You can't trust anyone anymore. [citation needed]
posted by Faint of Butt at 7:37 AM on September 2, 2014 [4 favorites]

Thanks for this. Haven't read the PDF yet, but the NY Times article is excellent. Interesting that Justice Scalia has decried their use yet still seems to rely on them himself when it suits his ideological purposes.

The Becket Fund for Religious Liberty represented the Green family (owners of Hobby Lobby) in the recent Sebelius v. Hobby Lobby case. 84 amicus briefs were filed with SCOTUS for that case, and all of them are Becket's website. Nearly all of them were from sources that were clearly biased, peddling their own interests, and invested in a court decision for a particular side.
posted by zarq at 7:40 AM on September 2, 2014 [1 favorite]

Experts also get on TV.
posted by cjorgensen at 7:43 AM on September 2, 2014

Amici briefs - especially in controversial cases - almost always serve an advocative purpose. But they often give critical context to a legal question that would otherwise be missing from the record.

Just last week, Judge Posner very skeptically (and sometimes outright dismissively) questioned representatives for the states of Wisconsin and Indiana who were seeking to defend their states' constitutional bans on gay marriage. One of the pieces that he referred specifically to was the amicus brief of the Family Equality Council, which he described as having "a great deal of rather harrowing information about the problems that are created for children and their parents in the case of same sex couples not allowed to be married..." He noted that "all these bad stories" told in the brief "made an impression," and pushed for a response from the state of what could be so compelling that it outweighs the experiences that these families endure.

If you read that brief, it is really wonderfully done. It gives a voice to kids of same-sex families in Wisconsin and Indiana, and identifies both specific difficulties (e.g. that kids have a legal parental relationship only with one parent and have no little or rights with respect to the other) and general ones (that these kids are made by their own government to feel that their family is flawed, or immoral, or even illegal.) Those kinds of stories can easily get lost in the legal debate and (hopefully) they helped Judge Posner and his fellow judges understand the real impact of the law that they are considering.
posted by AgentRocket at 7:54 AM on September 2, 2014 [2 favorites]

'The experts can be persuasive. They can quote stacks of facts and figures. They can give all sorts of logical reasons. They can present plausible explanations. They can also pose difficult questions and point to awkward contradictions in any alternative view. However, the biggest thing going for the experts is that they are thought to be the experts.’

Brian Martin (1991) ‘Strip the Experts’ pp.8-9
posted by biffa at 8:11 AM on September 2, 2014

I was involved in creating some of this amicus material ("intervenor" material in Canada) in a "culture wars" case once. I was pretty surprised at the low standards of what counted as evidence and expertise, not only in what the other intervenors submitted, but in what we ourselves submitted, in what the parties submitted, and in what the expert witnesses were allowed to say.

Our case involved a lot of social science evidence; both the parties and the intervenors submitted piles of it, some but not all of it peer-reviewed, and the expert witnesses were social scientists. People also submitted a lot of "facts" that really were fundamentally similar to blog posts, although mostly from traditional media.

Frankly, I thought most of the "factual" evidence was little better than random opinion. Even the peer reviewed papers had obvious weaknesses. It's hard to get real solid information in the areas we were dealing with, and as far as I could tell the standard response to that was to apply sort of iffy statistical methods to small samples, write your paper to suggest more than you could really prove, and quietly soft-peddle the causal inferences you were obviously trying to draw.

Most of the experts' contribution was in the form of glossing over any limiting statements in the papers, especially about causality... and then piling on their own plausible-sounding overinterpretation. Then the lawyers would suggest inferences beyond that.

Anecdotes were data. Nobody every actually said anything about statistical validity, inferential validity, sample size, or, well, much of anything.

It was not encouraging.
posted by Hizonner at 8:31 AM on September 2, 2014 [7 favorites]

This is really not a problem with the briefs, but with the breakdown of professional integrity brought on by the blatant partisanship of those who rush to take them at face value. (*cough* Scalia, Alito, Thomas *cough*)
posted by mondo dentro at 8:31 AM on September 2, 2014 [1 favorite]

Isn't this more a problem with the legal profession generally? At least in America, the practice of law seems to be rather hidebound, where the focus is on precedent and arcane judicial conventions rather than anything resembling modern scientific standards of evidence. And in order to advance in law, you have to accept the traditions of the profession, so it becomes very difficult to incorporate new ways of thinking, or even just the understanding that the rules for determining who shot Mr. Burns, say, aren't that applicable to determining whether an IUD is an abortifacient.
posted by Cash4Lead at 8:44 AM on September 2, 2014 [2 favorites]

Conveniently, I can just cite myself.
posted by amicus at 8:47 AM on September 2, 2014 [23 favorites]

Well, briefly anyway.
posted by Naberius at 8:48 AM on September 2, 2014 [9 favorites]

Truth and Court? Consider that, from a laymans POV, an attorney can not lie in court and can only be guilty of misconduct, why is anyone shocked that the Amicus Fact as filed is considered truth by a Judge?

When was the last time someone filing an Amicus was brought before the grievance committee made up of fellow lawyers for such conduct?

Judge Posner

BTW - Where was it that he made the statement about how white collar crime should just get fines and not be considered "crimes" or worthy of jail time?
posted by rough ashlar at 8:53 AM on September 2, 2014

From the (FPP worthy) Beards in Prison Hold Next Religion Test for Supreme Court, this lovely excerpt:

The [Arkansas prison] officials told the [State court] justices that they should not be required to produce evidence that prisoners actually used beards as hiding places. [...] Asked whether he knew of prisoners who “got caught concealing contraband within their beards,” Mr. Hobbs (the director of the state’s corrections department) described an incident the month before. “An inmate fresh out of county jail,” he said, “concealed a part of a razor blade and later on that night committed suicide with it.”

The state’s Supreme Court brief, filed in July, cited that testimony. But it was only partly true.

An inmate named Steven Oldham did kill himself with a razor on Aug. 8, 2013, in Malvern, Ark. But he did so, according to a sworn statement from the coroner, by using “an orange plastic disposable razor” that had been issued to him by prison authorities so he could shave his beard.

Douglas Laycock, one of Mr. Holt’s lawyers, said Supreme Court briefs should meet a higher standard of factual accuracy. “This kind of flat misrepresentation to the court, however it happened,” he said, “doesn’t happen very often.”

posted by RedOrGreen at 8:57 AM on September 2, 2014 [3 favorites]

Ouch! Texas Judge Slams Right-winger for Wasting His Time:
Mr. Joseph Bast, president and CEO of the Heartland Institute, testified for the Intervenors regarding the Texas Taxpayers’ Savings Grant Programs (“TTSGP”), a school voucher bill that failed in the 82nd Legislative Session. As a threshold matter, this Court finds that Mr. Bast is not a credible witness and that he did not offer reliable opinions in this matter. While Mr. Bast described himself as an economist, he holds neither undergraduate nor graduate degrees in economics, and the highest level of education he completed was high school. Mr. Bast testified that he is 100% committed to the long-term goal of getting government out of the business of educating its own voting citizens. Further, his use of inflammatory and irresponsible language regarding global warming, and his admission that the long term goal of his advocacy of vouchers is to dismantle the “socialist” public education system further undermine his credibility with this Court.
posted by mondo dentro at 9:26 AM on September 2, 2014 [2 favorites]

So Judges and Justices need fact-checkers? I thought that's what clerks were for.
posted by Mental Wimp at 9:35 AM on September 2, 2014 [1 favorite]

Well, it's sure as hell what journalists are supposed to be for.
posted by mondo dentro at 9:46 AM on September 2, 2014 [1 favorite]

Interesting that Justice Scalia has decried their use yet still seems to rely on them himself when it suits his ideological purposes.

It's worse. He relies on talk radio.
posted by Mental Wimp at 9:49 AM on September 2, 2014

Nothing new here. Muller v. Oregon, where we saw the very first Brandis brief, doesn't hold up all that well. In the 80s there were accusations that "junk science" was being used in environmental and consumer product litigation. That fight (and the science wars of the 90s) led to a revamping of scientific evidence rules with Daubert and the cases that followed it. Of course, amicus briefs are supposed to be legal arguments so they don't have to meet the same standards as facts admitted at trial so you can do a bit of an end-run around the admissibility rules.
posted by sfred at 10:09 AM on September 2, 2014 [2 favorites]

I can't read the PDF, but the NYT article doesn't say anything about Scalia citing them, and the Alito opinion referenced was an 8-0 opinion--i.e., no big deal. Maybe they do this in Big Cases, but that's not what the article cited says.

Even where judges do cite facts from an amicus brief, there's a difference in citing amicus-sourced facts that are dispositive facts for a case (bad!) and just citing something that's throwaway language in a footnote (not as bad!).
posted by resurrexit at 10:42 AM on September 2, 2014

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