Page:EO 14023 Commission Final Report.pdf/279

 supported by an amicus and cross-referenced the party briefs to see if they were contested by the parties. Such a check existed in less than a third of the citations for the 2014 study and less than 10% of the citations for the more modern time period. The number of amicus briefs filed and the amount of seemingly legitimate information available to present makes it very unlikely that a litigant can adequately respond to amici-presented factual claims.



One possible reform involves increased disclosure rules on amici so that the Justices are fully aware of the source of the information they are digesting… If the Justices are blind to the actual funders of the amici then they have no way to evaluate critically the factual submissions coming from them. Current Supreme Court rules on amicus briefs require a statement of interest of the amicus and disclosure only as to whether the party contributed financially or otherwise to the brief. The rules do not bar anonymously-funded amicus briefs and they do little to shed light on briefs filed by neutral-sounding organizations that are in reality funded by those with an interest in the case (even if not the party).



Disclosure rules on amicus briefs can take many forms and still be effective. One possibility (borrowed from Daubert and the rules of evidence) is for the Court to require any amicus brief filed with factual claims to include an explanation of the methods used to discover them… The Court could easily impose even minor variations of this reform. It could, for example, require that any statement of fact in an amicus brief be supported by data that is publicly available (not “on file with” the author). Or, the Court could require disclosure when an amicus (or a related group) funds or authors a study purporting to establish a factual claim… Alternatively, the Supreme Court Rules could create a limited way for the parties to respond to unreliability in factual claims. The Court could permit a limited letter at the end of the amicus submissions in which the parties can respond—not to legal arguments—but only to instances where they think the amicus has relied on a shaky authority for a claim of fact.