KBJ's math doesn't add up -- but hate the game, not the player

Before joining the court, Justice Louis Brandeis filed such a brief in his brilliant challenge to work place conditions. It is now a common feature in briefing of cases as groups and associations push studies as determinative or substantial evidence on one side or another. My opposition to the brief is that the justices are in a poor position to judge the veracity or accuracy of such studies. They simply pick and choose between rivaling studies to claim a definitive factual foundation for an opinion.

It is also frustrating that, as a litigator, you fight over every entry into the record at trial. However, when you are before the Supreme Court, everyone is free to just dump statistics and studies into the record and the Court regularly uses such material to determine the outcome. It produces more of a legislative environment for the court as different parties insert data to support their own view of what is a better policy or more serious social problem. There is only a limited ability of parties to challenge such data given limits on time and space in briefing.

The result is that major decisions or dissents can be built on highly contested factual assertions. In this case, critics believe that the Jackson argument literally does not add up.

[This is my impression, too. The justices and their staffs seem to rely substantially on amici briefs when formulating arguments, both in the majority and in dissents; KBJ did in this case. The problem is that the parties to a suit do not usually scrutinize such claims the way that claims from the parties themselves would get reviewed for accuracy and rebutted. This becomes a garbage-in, garbage-out process unless the staffers start researching claims made in amici briefs first. That didn’t happen in this case, and that likely is the norm rather than the exception, as Turley argues here. The court should consider either a much firmer limit on the use of amici briefs, or institute a system in which amici brief filers can test and rebut opposition amici filers on the record. Or, perhaps even better, stick to the arguments from the parties, which already have an adversarial-testing process that would rapidly flag such misinformation. — Ed]