Facts can be elusive. Almost every seemingly undeniable fact has some alternative view (The Flat Earth Society, anyone?) In the legal system, establishing facts is tricky business at best. In almost every state and federal court in the United States, facts and evidence are strictly controlled. Not everything can be heard by a jury or judge during trial - hence the Rules of Evidence.
Yet, these rules are glaringly disregarded in the places where it may matter the most: the U.S. and state Supreme Courts. Out of this exception arises the use (and misuse) of amicus (‘friend of the court’) briefs. As Allison Orr Larsen details in “The Trouble with Amicus Facts,” there are serious shortcomings to allowing “neutral” parties to brief the Court in this manner. First, it is not by any means true that the facts in these briefs are reliable. Second, these briefs short-circuit the adversarial process’ traditional checks on facts in the form of cross-examination, etc.
The Amicus Process is on the Rise
To be sure, there are plenty of quality amici that provide the court with facts backed by publically available studies, etc. But there are disturbingly large numbers of amici, Larsen notes, which do not cite to any authority in making their factual assertions. They simply say the data is “on file” or something similar. As disturbing as this trend is, it would have a minor impact if the amici were not all that influential.
But when Larsen reviewed Supreme Court Opinions from 2008-2013, she found that amici are being cited more and more heavily. Further, the Court does not use these briefs as a platform to perform independent research. Indeed, they cite the amicus briefs themselves as the authority for some of the most contentious facts in cases. These “amicus experts,” Larsen states, have few checks on, or scrutiny of, their claims. The table below is reproduced from Larsen’s article and details how prevalent the use of amici are in the Court.
|Citations to Amicus Briefs in Supreme Court Opinions, 2008-2013|
|Total Citations to Amicus Briefs||606|
|Citations for Statement of Fact||124|
|Citations for Facts in a Majority Opinion||75|
|Citations for Facts Without a Party Response||89|
|Citations for Facts to Amicus Briefs Alone (not accompanied by a "see also" cite, a study, or an article)||76|
|Citations for Facts to Answer Outcome-Determinative Questions||97|
Larsen does propose some solutions to the problem of amici. First, the number of amicus briefs should be limited so that the highest quality briefs make it to the Court and better focus can be put on their merits. Second, the Court should decline all briefs which do not use transparent data and methods. Third, factual issues should be “flagged” in advance to allow everyone to comment. Fourth, the Court could be required to respond to significant counter evidence. These solutions would all help. Yet, there is a major problem. They would all require the Supreme Court’s action in amending the process that currently exists. When will the Supreme Court decide to act?
There is another alternative that would alleviate Larsen’s concerns about factual accuracy of amici: peer review. Indeed, Rule 702 and the Daubert trilogy both rely on peer review and general acceptance as criteria to determine whether expert testimony is admissible. At the trial level, peer review of experts can provide judges (to the benefit of litigants) with neutral and mainstream views on contested facts. At the Supreme Court, the same benefit exists with peer review of amici. Best of all, this peer review does not require ANY modifications in the current system. It is, in many ways, the organic approach for parties and amici to certify their briefs and validate their arguments. When done using multiple blind reviewers, as done in research, the process of separating the wheat from the chaff becomes more tractable. Peer review is how the Daubert trilogy can be enforced at the Supreme Court. With peer review, the Supreme Court can now be held to the same standards in sets for trial courts when it comes to “scientific” facts and expert opinion.
Image courtesy of J E Therlot under CC