
The Dubious Sources of Some Supreme Court ‘Facts’ - danso
http://www.nytimes.com/2014/09/02/us/politics/the-dubious-sources-of-some-supreme-court-facts.html
======
rayiner
The article glosses over an important distinction between the two kinds of
"facts" implicated in a Supreme Court case. On one hand are the "facts of the
case." These are the details of the specific dispute under review as formally
developed in the trial record. These are the "facts" to which the Court
applies its interpretation of the law. Applying the law to any other facts
than these would be unsound.

Then there are "facts" which give the Court a broader context in which to
place policy arguments. These facts are often not developed in the trial
record, but are also not central to the disposition in the first place. When
the Court makes a policy argument, potentially relying on "facts" cited by
amici, they almost always do so in a way that is ancillary to a rationale
based on a more concrete interpretation of the law and precedent. All of the
examples cited by the article are ones where a dubious "fact" in an amicus
brief is mentioned only to add color to the opinion.

The article, while it quotes Scalia, also misses out on a key aspect of his
judicial philosophy. If you eschew nebulous policy or empirical arguments, in
favor of concrete statutory or legal interpretation, as Scalia tends to do,
you are naturally insulated from reliance on dubious "facts" (and let's face
it, even many assertions appearing in properly sourced and cited "studies" are
dubious). It's only when you venture out into arguments like "the law should
be this because X% of Americans do Y" that you open yourself up to reliance on
questionable facts and interpretations.

This is particularly true because the lower courts tend to eschew such heavily
reliance on policy arguments, and so don't develop a record that includes the
facts necessary to support them. Thus, the Justices that favor such policy
arguments often have no choice but to rely on amici.

~~~
ScottBurson
Okay, fine, but doesn't that mean the Court should have a staff of policy
researchers to verify these claims?

~~~
tptacek
A tiny minority of all significant cases get cert at SCOTUS. So really, you're
suggesting an even larger staff of policy researchers covering all the federal
courts. Note, when you consider that, that those courts can barely keep up
with their caseloads as it stands.

Really, the reason this doesn't already exist is because as far as the Article
III courts are concerned, it does: it's called the legislature. The
constitutional design of our government assumes that legislatures are far
better fact-finding bodies than courts are.

Our balance of powers is especially sensitive to the issue that the courts,
built up further than they are now, would in effect be a panel of unelected
lifetime-tenure philosopher-kings.

~~~
pessimizer
>So really, you're suggesting an even larger staff of policy researchers
covering all the federal courts. Note, when you consider that, that those
courts can barely keep up with their caseloads as it stands.

I don't understand why you wouldn't throw more resources at something that
seems under-resourced. Am I missing something?

~~~
rayiner
The problem isn't the resources. It's the avoidance of creating an unelected
bureaucracy with a lot of power. As it is, the judiciary is really quite lean.
The Justices have a secretary, and four clerks, usually recent grads that only
spend a year on the job. And that's really it in terms of staff, discounting
court administrative staff. The lower courts are all just as lean. If you add
a staff of researchers, you're adding a whole new class of people with
influence.

------
DanielBMarkham
As a layperson, this story could use a LOT more context. Over-reliance on
amicus briefs may be bad, but having one law professor complain and then
writing a story around it isn't much of a news article.

Some things I think I know about this subject. 1) SCOTUS is given broad
latitude on how to do their job. Like complete latitude. One justice says
publicly that they looked to foreign courts for guidance in resolving matters.
That sounds totally whacked to me, but what do I know? 2) If you get the
impression that the justices are sitting around the laptop, surfing the
internet for blogs to agree with their preconceived opinions, you missed it.
Each judge has a team of clerks whose job is to stay on top of both the case
law and facts of the case. Justices are notorious for working the crap out of
these folks and they're expected to do their work flawlessly 3) AFAIK, the
amicus briefs are never used to determine the outcome, but can be cited as
supporting material. That means, by definition, that they could go away and it
wouldn't change the results. So the courts aren't certifying some off-the-wall
facts; they're deciding based on the law and then citing all sorts of other
things like the amicus briefs in their long-form opinions. Who knows if the
same decisions would be made without those briefs? It is beyond arguing about,
since it's a counter-factual.

All of these points should have either been discussed in the article or
referred to by the article. Dear Mr. Writer. It's called context. Get you some
of it.

I really wish the NYT would do a little more quality control. Hell, find some
old cranky guy and run some of this stuff by them. Speaking from personal
experience, the internet is full of assholes who would be happy to help. It
shouldn't be the case that they run with it and then get taken apart so
easily. And for the record, even though I took a potshot at the writer, I do
not blame them, I blame the system they have. They could easily do a better
job than they're doing. It's called editing.

------
rbanffy
Shouldn't it be considered perjury to knowingly submit faulty information in
an amicus curiae brief?

------
tomohawk
The supreme court simply does not have the capability to perform fact finding
like a legislature or executive can. A legislature can subpena witnesses, etc.
It's designed to create law. It's designed to decide policy. The supreme court
should stick to what it was designed to do. It should stick to the law and
avoid policy.

------
hownottowrite
Professor Larsen's work on this subject goes back quite a way.
[http://www.virginialawreview.org/sites/virginialawreview.org...](http://www.virginialawreview.org/sites/virginialawreview.org/files/1255.pdf)

