The NYTimes reported on a fairly new phenomenon at the Supreme Court level. As the justices look to amicus briefs for help with data, "[t]heir opinions are increasingly studded with citations of facts they learned from amicus briefs."
While this may not seem problematic on its face, "'[t]his is a perilous trend,' said Allison Orr Larsen, a law professor at the College of William and Mary. 'The court is inundated with 11th-hour, untested, advocacy-motivated claims of factual expertise,' she wrote in an article to be published in The Virginia Law Review."
"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. Recent opinions have cited 'facts' from amicus briefs that were backed up by blog posts, emails or nothing at all."
The justices must be cognizant of the resources that amicus briefs cite for authority. It is not enough to merely cite to the amicus brief - the justices must also look to the reputability of the sources that the amicus brief cites to determine if the information is unbiased and represents the true nature of the reasoning in an opinion.
While not all amicus briefs cite questionable material, many amicus briefs rely on inferior data. "Some 'studies' presented in amicus briefs were paid for or conducted by the group that submitted the brief and published only on the Internet. Some studies seem to have been created for the purpose of influencing the Supreme Court." If the justices are going to cite an amicus brief, they should look for information that is, in part, peer-reviewed and published in a reputable journal.
"Yet the justices are quite receptive to this dodgy data. Over the five terms from 2008 to 2013, the court’s opinions cited factual assertions from amicus briefs 124 times."
The justices should take heed of Professor Larsen's article and pay closer attention to the reputable nature of the information cited in amicus briefs. Otherwise the SCOTUS opinions are undermined by potentially inaccurate or bias information.