'Information that may not be accurate' is influencing SCOTUS opinions: legal expert

11 December 2023

In a recent Politico report by Heidi Przybyla, the Washington, DC journalist pointed out that right-wing groups connected to conservative US Supreme Court justices "are actively using 'amicus briefs to support their historical narrative.'"

Legal expert and University of Texas School of Law professor Steve Vladeck, in a recent MSNBC op-ed referencing Przybyla's report, sounds the alarm on the fact that the far-right groups' "arguments are showing up with growing regularity in the justices’ written opinions." But he adds, "the bigger problem with all sorts of amicus briefs in the Supreme Court: the justices' increasing reliance upon these briefs as authoritative sources for factual or legal contentions that haven't been tested in the lower courts and are being advanced by groups or institutions with agendas of their own."

An even "bigger problem," the law professor points out:

1 in every 5 citations to amicus briefs by the Justices in the last 5 years was used to support a factual claim. ... Less than a third of the factual claims credited by the Court were contested by the party briefs. And more than two-thirds of the time, the Justice citing the amicus brief for a fact cites only the amicus brief as authority — not any accompanying study or journal citation from within the brief. This indicates that the Justices are using these briefs as more than a research tool. The briefs themselves are the factual authorities, and the amici are the experts.

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Meaning, "amicus briefs are providing the justices with information that may not be accurate — and which the parties have not had, and usually will not have, a meaningful opportunity to contest," Vladeck emphasizes.

He writes, "The more that the justices rely upon factual or legal claims advanced by amici curiae, especially when it is unclear who is funding those claims, the more they risk the appearance — if not the reality — that they are using these briefs the way the Scottish writer Andrew Lang reportedly complained that drunks use lampposts: 'for support, rather than illumination.'"

Vladeck's full op-ed is here.

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