But this 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.
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.
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, Professor Larsen found.