Acceptance of Erroneous Facts in Supreme Court Opinions

In the New York Times, Adam Liptak has a piece on the trend of Supreme Court opinions accepting and restating facts appearing in amicus briefing, some of which facts are later revealed to be erroneous or based on questionable studies: "Seeking Facts, Justices Settle for What Briefs Tell Them."  This is a phenomenon that was heavily criticized by Justice Scalia in his dissent in Sykes v. United States, No. 09-11311 (2011):

Supreme Court briefs are an inappropriate place to develop the key facts in a case.  We normally give parties more robust protection, leaving important factual questions to district courts and juries aided by expert witnesses and the procedural protections of discovery.  An adversarial process in the trial courts can identify flaws in the methodology of the studies that the parties put forward; here, we accept the studies' findingso n faith, without examining their methodology at all ... The data may be skewed ... The Court does not reveal why it chose one dataset over another.  In some, our statistical analysis ... is untested judicial factfinding masquerading as statutory interpretation.  Most of the statistics on which the Court relies today come from government-funded studies, and did not make an appearance in this litigation until the Government's merits brief to this Court.

Id., dissent at 6 (internal citations omitted).  

At a Volokh Conspiracy blog post entitled "The Dubious Sources of Some Supreme Court 'Facts,'" Jonathan Adler has further thoughts.

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