I follow what the Supreme Court is doing, but I don't read their decisions, unless I must for some work related reason. My blood pressure is in a very good range, but why take chances. Even if I did read their decisions, I'm not sure I would have caught on to this.
A little background. The Supreme Court is an appellate court (except in those rare instances where it has original jurisdiction). Appellate court's do not find facts. They take the facts found by the lower court and decide whether the law requires a different result based on the facts found. As a crude example, if an appellate court is hearing an appeal of a case involving a motor vehicle accident, and there was sufficient evidence that a traffic light was green at the time of the accident, the court cannot decide that it was in fact red. For the most part, an appellate court cannot fill in factual gaps by taking new evidence or engaging in surmise. If, for instance, there was no evidence about the traffic light at the time of the accident, the court cannot assert as fact that it was green. There are exceptions. It is not necessary, for instance, that a litigant prove that a human being deprived of air will die. The court can take “judicial notice” of some facts.
This Supreme Court has apparently been accepting factual assertions contained in amicus briefs, even when those briefs cite unreliable sources for those facts, or no source at all:
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.
Some amicus briefs are careful and valuable, of course, citing peer-reviewed studies and noting contrary evidence. Others cite more questionable materials.
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.
…
In a 2011 decision about the privacy rights of scientists who worked on government space programs, Justice Alito cited an amicus brief to show that more than 88 percent of American companies perform background checks on their workers.
“Where this number comes from is a mystery,” Professor Larsen wrote. “It is asserted in the brief without citation.”
In a 2012 decision allowing strip searches of people arrested for even minor offenses as they are admitted to jail, Justice Anthony M. Kennedy cited an amicus brief to show that there are an “increasing number of gang members” entering the nation’s prisons and jails. The brief itself did little more than assert that “there is no doubt” this was so.
The article implies that the phenomenon is not restricted to the conservative judges, who, indeed, have decried the practice when they are not themselves employing it. However, all the examples but one involve the conservatives, including the truly outrageous exemplars.
It would be a truly dangerous practice even if this were not already the most political court since 1795 or thereabouts. The fact is that it is very much the case that things “everyone knows” are often not true. That's why judicial notice should be used sparingly, and you certainly shouldn't take the word of a blogger or an unsupported assertion by a party or an amicus. I mean, even here, I try to provide links to reliable sources when I make factual assertions. The Supreme Court should be held to a higher standard than a blogger that nobody reads. In addition, as the article sort of points out, the opposing side often lacks the ability to take issue with facts asserted in amicus briefs, and is never on notice that the court will choose to rely on those facts to rule against it. (Also, I've never heard of citing a brief as authority for anything) If the fact in question was not at issue at the trial level, it should not be introduced at the appellate level, where it cannot be properly tested in the adversary process. It's bad enough that this court, even before Bush v. Gore was quite comfortable with making up the law, but it's truly frightening if it becomes very comfortable with making up the facts.
Yet another sign that the Republic is doomed.
Post a Comment