The Trouble with Amicus Facts

he number of amicus curiae briefs filed at the Supreme Court is at an all-time high. Most observers, and even some of the Justices, believe that the best of these briefs are filed to supplement the Court’s understanding of facts. Supreme Court decisions quite often turn on generalized facts about the way the world works (Do violent video games harm children? Is a partial birth abortion ever medically necessary?). To answer these questions, the Justices are hungry for more information than the parties and the record can provide. The consensus is that amicus briefs helpfully add factual expertise to the Court’s decision making. The goal of this Article is to chip away at that conventional wisdom. The trouble with amicus facts, I argue, is that today anyone can claim to be a factual expert. With the Internet, factual information is easily found and cheaply manufactured. 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, advocacymotivated claims of factual expertise. And the Justices are listening. This Article looks at the instances in recent years when a Supreme Court Justice cites an amicus for a statement of fact. It describes the way the brief, rather than the underlying factual source, is cited as authority and addresses the failure of the parties to act as an adequate check. I challenge this process as potentially infecting the Supreme Court’s decisions with unreliable evidence, and I make suggestions for ways to reform it. It is time to rethink the expertise-providing role of the Supreme Court amicus and to refashion this old tool for its new purpose. INTRODUCTION 1758 I. HISTORY OF THE AMICUS CURIAE 1765 * Associate Professor of Law, College of William and Mary. For their helpful insights and comments I thank Daryl Levinson, Mike Klarman, Caleb Nelson, Neal Devins, Tim Zick, Adam Gershowitz, Alan Meese, Will Baude, Tara Grove, Jeff Bellin, Chris Griffin, and Brianne Gorod. For exceptional research assistance I thank Rebecca Morrow, Adam Wolfe, Laura Vlieg, and Michael Umberger. As always, I thank Drew. T LARSEN_BOOK (DO NOT DELETE) 11/17/2014 6:51 PM 1758 Virginia Law Review [Vol. 100:1757 A. Origins 1765 B. The “Brandeis Brief” and the Birth of Amicus Factual Expertise 1768 II. SUPREME COURT AMICI AS FACTUAL EXPERTS TODAY 1773 A. What Facts Are Amici Supplying and Why? 1773 B. Recent Trends in the Court’s Citation to Amicus Briefs ........ 1777 C. The Significance of Amicus Citations 1780 III. SUBSTANCE-BASED OBJECTIONS TO AMICUS EXPERTISE 1784 A. Amici Citing No Source or a Source Not Publicly Available 1784 B. Amici Citing Sources Created in Anticipation of Litigation 1788 C. Amici Citing Authorities with Minority Views in Their Field 1795 D. Where Is the Check from the Adversary Method? 1800 IV. PROCESS-BASED OBJECTIONS 1802 V. WHAT’S NEXT? SUGGESTIONS FOR REFORM 1809 A. Limiting the Number and Scope of Expert “Witnesses” ........ 1809 B. Transparency of Data Submitted and Methods Used 1811 C. Factual Issues Should Be “Adequately Flagged” in Advance 1812 D. Requiring Response to Significant Counter Evidence 1815 CONCLUSION 1817