The Supreme Court is too dependent upon its 'friends'

The Supreme Court is getting too popular. Increasingly in recent years, new court cases come with a battery of “amici curiae” — Latin for “friends of the court.” An “amicus brief,” the theory goes, can assist in the court’s decision-making process by bringing to the justices’ attention factual or legal points not adequately addressed by the main parties, or by helping to underscore the stakes of the parties’ arguments as they would apply to other cases going forward.

Although every American court allows for the filing of such briefs, they’ve become a central part of litigation in the Supreme Court. Almost every dispute the court hears now features these so-called friends on both sides; and the highest-profile cases sometimes draw more than 100 briefs. Perhaps not surprisingly, as a new investigation by Politico reports, more and more of those briefs are being spearheaded by the same small network of conservative and right-wing groups. And their arguments are showing up with growing regularity in the justices’ written opinions, notably in Justice Samuel Alito's majority decision overturning Roe v. Wade.

The Politico report helps spotlight a practice that has been hiding in plain sight for years. But it also underscores 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. Especially as the court has turned more sharply to the right in recent years, that reliance has likewise skewed toward claims advanced by parties with an obvious (and, as Politico suggests, coordinated) ideological bent, at the expense of not only the rules that are supposed to govern the legal process, but also the accuracy of the narratives the court’s opinions provide.

One of the hallmarks of common-law legal systems like ours is the adversarial testing of disputed factual or legal claims. This idea holds that when lawyers representing both the plaintiff and the defendant have a meaningful opportunity to interrogate claims made by the other side, courts are in the best position to decide what really happened and whose arguments about the legal consequences of those facts are more persuasive. Taking that idea one step further, appellate courts, which are physically and temporally removed from the trial courts, are supposed to defer to the trial court’s assessment of facts unless the trial court committed “clear error.” Thus, by the time a case reaches the Supreme Court, the “facts” are supposed to have been fully developed by the litigation. In that respect, friend of the court briefs are not supposed to substitute for the facts and legal arguments marshaled by the parties; they are supposed to augment them.

It turns out, though, that the justices regularly rely upon facts asserted in amicus briefs — which have not gone through the same rigmarole and thus are not nearly as reliable. Consider the results of an academic study by professor Allison Orr Larsen of William & Mary Law School:

In other words, 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.

All of that would be problematic enough if it were clear in each case who was behind the amicus brief at issue. Indeed, the justices have been careful in the past to take with a grain of salt factual claims advanced by parties with clear interests in the dispute. In one 2008 decision, for example, the court “decline[d] to rely” on studies that had been funded by the very party invoking them.

But the court’s disclosure rules for amicus rules are laughably weak. The brief need not disclose who funded a brief; it need disclose only that it wasn’t funded by one of the parties before the court. In the court’s major 2022 Second Amendment ruling in New York State Rifle & Pistol Association v. Bruen, for example, the National Rifle Association did not disclose any connections to the petitioners or any of the other amici — even though subsequent reports revealed that at least a dozen different amicus briefs in that case had funding connections to the NRA (and that the NRA had funded the petitioners’ Supreme Court efforts, too).

Three years ago, in United States v. Sineneng-Smith, the justices chastised a federal appeals court for relying too heavily on arguments advanced by amici curiae in reaching its decision — in defiance of the “party presentation principle.” As Justice Ruth Bader Ginsburg wrote for the court, “in both civil and criminal cases, in the first instance and on appeal ... we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.”

But if the court is going to chastise lower courts for relying too heavily on amici, it should also look in the mirror. 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.”