The Adverse Amicus: Does Court Acceptance of Factual Assertions Require a More Active Response?

Explore:  Appeals SCOTUS

The September 1 issue of the New York Times reports on an upcoming article on the role of amicus curiae briefs in shaping Supreme Court opinions. The article, authored by William and Mary professor, Allison Orr Larsen, addresses the tendency of Supreme Court Justices to cite factual assertions made by amici. These assertions may inject matters into the Court’s decision making process that were not placed before the trial court and may not have received the vetting that a factual assertion by a party has received. While various Justices have warned against resorting to such off-the-record facts, Professor Larsen has turned up a number of instances where Supreme Court opinions have cited amicus briefs for various factual matters—including instances where the briefs themselves provide no further authority for backing up the claim.

The acceptance of and reliance upon friend-of-the-court briefs varies greatly among the appellate courts. Texas, for example, takes a rather welcoming attitude towards such briefs. In jurisdictions where a robust amicus practice is allowed, Professor Larsen’s work suggests that litigants should take claims made in amicus briefs seriously. Where a claim lacks a basis in the record it may be necessary to move the court to strike that portion of the brief and to remind the court of its responsibility to judge the case based upon the record before it, not the assertions of an interested “friend.”

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