No, Joe Biden Didn’t Poop His Pants. Plus, the Supreme Court’s Fact-Checking Problem
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A report from the Wall Street Journal questions the mental fitness of President Joe Biden. Sinclair Broadcasting Group has bought up local TV news stations across the country, and hometown journalists are required to voice the company's views.

From WNYC in New York, this is On the Media. I'm Brooke Gladstone. And I'm Michael Loewinger. Also on this week's show, the Supreme Court lifted a ban on bump stocks, which enable guns to shoot hundreds more rounds a minute. This decision means that the next mass shooting involving a legally purchased bump stock can fairly be laid at the feet of the Supreme Court. That opinion leaned heavily on an unreliable amicus brief written by a gun rights group.

These advisory papers don't even go through a fact-checking process. You're looking for something to cement your pre-existing worldview, and oh, there's an amicus brief to support you. It's all coming up after this.

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Progressive Casualty Insurance Company and Affiliates. Price and coverage match limited by state law. From WNYC in New York, this is On the Media. I'm Michael Loewinger. And I'm Brooke Gladstone. Hey, how about Thursday's debate night? For Trump supporters, it was the gift that kept on giving. In a situation where there are 40% fewer people coming across the border illegally, it's better than when he left office. And I'm going to continue to move until we get the total ban.

on the total initiative relative to what we're going to do with more border patrol and more asylum officers. President Trump? I really don't know what he said at the end of that sentence. I don't think he knows what he said either.

For Democrats, white knuckling throughout, there was the usual cornucopia of Trump deflections. He rarely answered a question, even with multiple prompts, using his time to attack his opponent with a barrage of lies and outrage. I'd say you couldn't make this stuff up, but obviously you can. ♪

We're like a third world nation between weaponization of his election, trying to go after his political opponent, the damage he's done to our country. And I'd love to ask him why he allowed millions of people to come in here from prisons, jails and mental institutions to come into our country and destroy our country. Nancy Pelosi, she said, I take full responsibility for January 6th.

They will take the life of a child in the eighth month, the ninth month, and even after birth. He even landed a delicious self-inflicted humiliation. I didn't have sex with a porn star. But for many, that was weak tea. Viewers on both sides have long observed that none of that seems to matter. Or does it? Voters act in mysterious ways. But

But Biden, oh Biden, his voice was weak, his face pale, his jaw slack, his sentences sometimes illegible. Sure, he has a lifelong stutter, and yes, he is old, known to be prone to gaffes. His campaign said he had a cold.

But for those who tremble before the prospects of another Trump term, it was the stuff of nightmares. Making sure that we continue to strengthen our health care system, making sure that we're able to make every single solitary person eligible for what I've been able to do with the COVID, excuse me, with dealing with everything we have to do with... Look, if...

We finally beat Medicare. There's a full-on panic about this performance. Not like, oh, this is recoverable. It is more of a, okay, he's got to step aside. Politicos and pundits buzz with the idea of an open convention. They say the vast majority of Democratic delegates pledged to Biden would either need to stage a revolt or he'd need to release them. But who would replace him? Congress.

Kamala Harris has only really emerged in recent months, prominently with the issue of abortion. Sending her to fix the border earlier in her tenure seemed like a cruel joke. And it's only seven weeks until the convention. On Friday at a rally in Raleigh, North Carolina, an energetic Biden was reassuringly defiant. Folks, I don't walk as easy as I used to. I don't speak as smoothly as I used to.

I don't debate as well as I used to. But I know what I do know. I know how to tell the truth. I know. I know. I know right from wrong. And I know how to do this job. I know how to get things done. I know like millions of Americans know. When you get knocked down, you get back up.

But then there's the media coverage. CNN announced in advance that there would be no fact-checking by the moderators. Writing in The Guardian, commentator Rebecca Solnit observed, Much has been said about the age of the candidates, but maybe it's the corporate media whose senility is most dangerous to us.

Their insistence on proceeding as though things are pretty much what they've always been, on normalizing the appalling and outrageous, on using false equivalencies and both-siderism to make themselves look fair and reasonable. As it happens, in the past six months, The Washington Post, The New York Times, The Wall Street Journal have all published over 20 articles on Biden's age—

The number of articles on Trump's age? Four, two, and one, respectively. Because it's not newsworthy? Political junkies might note that Trump's mental fitness seems in steady decline, but for a casual news consumer, his featherlight grip on reality is old news.

but his debate performance. His big kill on the black people is the millions of people that he's allowed to come in through the border. They're taking black jobs now.

I want absolutely immaculate clean water and I want absolutely clean air and we had it. We had H2O. We had the best numbers ever. If he wins this election, our country doesn't have a chance, not even a chance, of coming out of this rut. We probably won't have a country left anymore. That's how bad it is.

The outlet on which most Americans rely for trustworthiness is not CNN or Fox or the New York Times. It is their local news station, which provides crucial information close to home. It's part of the community, except when it's not.

Nearly 200 of those stations across the nation are owned by the Sinclair Broadcast Group, a private company founded in the 1970s. These stations still bear the logos of ABC, NBC, and CBS, but their newsrooms are subject to Sinclair's directives, ginning up stories of crime and homelessness, drug use, focusing on the failing nation stuff Trump so loves.

And the local news folks at Sinclair stations are compelled to read scripts from Sinclair HQ. Recently, Judd Legum, author of the Popular Information newsletter, noticed that some of that material, especially on Biden's age, began as tweets from the Republican National Committee.

Unbeknownst to viewers, Sinclair works hand in glove with the RNC. Sinclair runs what they call the National Desk, and they have been producing these attacks on Biden's mental fitness and then posting them automatically to dozens of local news sites.

Let's open up the how low can you go file. You highlighted an article that appeared on June 6th about Biden at a D-Day event, supposedly attempting to sit down on three separate occasions. It concluded that, quote, Biden's strange stooping motion caused several terms to trend on X, including diaper, pooping and pooped.

Yes. I mean, this is such an absurd claim that Biden would have soiled himself at a public event because he was sitting down. And what happens is and what's really insidious about this is this little snippet about what's trending on X, using that as essentially an excuse to launder this reputation.

rumor into news is then appended to all of the other stories that Sinclair is publishing about Biden's supposed mental issues. So it's just being promoted again and again and again. This appeared on some 86 different affiliate sites? At least. I mean, these are just the ones that I have been able to verify as far as I know about

from talking to people inside of Sinclair, these pieces from the National Desk are pushed automatically to all of the affiliate websites. So at least 86, but probably much more. You got to admit, some of that video, edited or otherwise, doesn't look great. He just looks his age, which is concerning to voters across the spectrum, I think, especially young progressives.

That's very reasonable, but that concern should be based on facts and not these rumors and insinuations. Just to underscore the pattern, the RNC tweets video of Biden selectively edited to look decrepit. Then Sinclair turns the tweet into an article released to its stations nationwide.

Do these stories ever creep further up the news chain or do they not need to? I don't think they necessarily need to because this is a powerful vehicle for information. If you look at what kind of media the swing voters are reading, they're probably not reading the New York Times. They're probably not reading the Washington Post. They're probably not watching Meet the Press, but they are watching their local news. So you're hitting...

just the type of people that you want to reach. But it is part of a larger ecosystem that is pushing these messages. A lot of Rupert Murdoch properties, Fox News, The Wall Street Journal, The New York Post are engaging in a lot of the same behavior. Of course, there's a whole network of

Right-wing websites engaging in the same behavior, podcasts, others, an ecosystem that includes the Trump campaign itself. But it is unique in that it is able to do so without any outward signs of bias or ideological bias.

tilt. The problem seems to be that Sinclair stations look like normal local news stations until you actually listen. That is the core of the problem.

It's a matter of transparency. Local news and these local anchors are really one of the last bastions of trust in the media in the United States. Upwards of 70% of Americans, according to a Gallup poll late last year,

still trust local news. So it's one thing to have this appear on Fox News, which people understand is ideologically conservative. It's another to have it appear on these local affiliates that are not viewed as ideological and are trusted by people across the political spectrum. The other thing that

viewers and readers do not know is that the local anchors and the local journalists working at these stations are not involved at all in this process, have no ability to decide whether or not to publish these articles on their websites or run these segments on their broadcasts.

Do you mean that they're given scripts from up above and they are compelled to read them? That's exactly what's happening. Are they required to read them? Yes, they are. There was one very recently based on a Wall Street Journal report that alleged that Biden was, quote, slipping in private meetings.

They interviewed a lot of people for the piece, but the only person who was quoted on the record was former House Speaker Kevin McCarthy, obviously a Republican, not a fan of Biden. And also McCarthy is someone who, when he was in office, actually publicly praised Biden's performance in these private meetings. So not really a consistent story from him either. A package was produced by

promoting that story, and the local news anchors were required to read an intro, not only questioning Biden's mental fitness, but also saying that this issue could be, quote, an election decider.

A report from the Wall Street Journal questions the mental fitness of President Joe Biden. New at 4 o'clock, the Wall Street Journal is out with a new report calling into question the mental fitness of President Joe Biden. The Wall Street Journal is out with reporting calling into question the mental fitness of President Joe Biden. As national correspondent Matt Gelka tells us. The issue could be an election decider. Could be an election decider. Could be an election decider.

Sinclair has defended this practice as standard procedure. And it is true that, for instance, CNN operates a syndicated service where they'll produce a package on national issues and make that available to local affiliates who are subscribers to this service and provide a script to intro these packages.

But the difference is those are optional. These are affiliates who are choosing to subscribe to CNN service, choosing which stories to run or not. There's nothing optional about these packages. They are must-run, and the anchors must introduce them in the way that is prescribed by Sinclair.

Has there been any coverage of Trump's age at Sinclair? Just this week, many Democrats took to X to talk about a Trump rally in Philadelphia where he seemed to be rambling about washing machines before Fox News cut away from the speech. Where there's so much water, you don't know what to do with it. You know, it's called rain. It rains a lot in certain places.

But no, their idea, you know, did you see the other day? They just put I opened it up and they closed it again. I opened it. They close it. Washing machines to wash your dishes. There's a problem. They don't want you to have any water. They want no water. And I was with. And you were just listening to former President Trump. And we're going to talk about some of the.

I could not find any story on Sinclair's websites about Trump's fumbles and follies. There were some that noted that both men were among the older people to run for president, but nothing that would be comparable to stories we saw about Biden. But

After these two pieces that I published, one focused on the broadcast, one that was focused on the websites, I did notice that Sinclair finally produced a piece that acknowledged that Trump has, quote, his own problems stumbling over words and mixing up dates. This has not appeared yet on any of the broadcasts. It did appear in one story.

With regard to its claimed neutrality, there was a 2018 study by something called the American Political Science Review. That's right. What this study found is that when Sinclair takes over an affiliate to

two things happen. One, there is a rightward tilt to the coverage. And secondly, there's less local coverage and more national coverage. David Smith, who runs Sinclair, we know that he is ideologically very right-wing and that through his family foundation has donated hundreds of thousands of dollars to

to very conservative organizations like Project Veritas, which does right-wing undercover operations, Turning Point USA, which just held a huge right-wing conference that Trump spoke at, and Moms for Liberty. So it is quite clear where his politics are. And we have seen as Sinclair expands, as their tentacles reach further out,

those political views are being expressed through the Sinclair stations and websites. Judd, thank you very much. Thanks for having me. Judd Legum is the author of the Popular Information newsletter. Coming up, how dubious experts and dark money groups tip the scales in the Supreme Court. This is On The Media.

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James Baldwin is one of those writers who commands respect as well as love and affection. He was born 100 years ago this year. I'm Razia Iqbal. Join me for Notes on a Native Son, a special series from Notes from America with Ta-Nehisi Coates, Bryan Stevenson, Nikki Giovanni, and many others discussing their favorite passages by Baldwin. Listen to new episodes every Saturday in the Notes from America feed wherever you get your podcasts.

This is On The Media. I'm Brooke Gladstone. And I'm Michael Loewinger. The Supreme Court will soon go into recess. And just before the deadline, SCOTUS is releasing a flurry of high-stakes, highly anticipated decisions. The U.S. Supreme Court this morning undid decades of precedent in the area of government regulation. It made it far more difficult for federal agencies to issue rules and regulations than it did for the U.S. Supreme Court.

that carry out broad mandates enacted by Congress. Bloomberg reporting that the U.S. Supreme Court is poised to allow emergency abortions in Idaho. New this morning, the Supreme Court has sided with the Biden administration in a case about social media websites. The Supreme Court threw out a lower court ruling that said the federal government could not pressure social media companies to combat misinformation.

A few of the earlier decisions from this session include some dubious facts. For instance, two academics spoke out after Justice Samuel Alito cited their work and written opinions. They said he had misunderstood their research. And this is not a new problem. A 2017 piece by ProPublica found seven errors in majority opinions in cases dealing with voting rights, labor law, and police searches.

Sometimes, blunders are misinterpretations of data. Other times, bad info comes from partisan groups that supply the court with highly contested claims and faulty statistics. And the consequences of these inaccuracies are far-reaching. Take a case from earlier this month: Garland v. Cargill. Major decision from the Supreme Court striking down a federal ban on bump stocks enacted by the Trump administration.

Bump stocks are accessories that essentially allow semi-automatic rifles to fire more quickly. The court said a law aimed at banning machine guns cannot be interpreted to include bump stocks.

So this is a challenge to the ban on bump stocks that the Trump administration actually enacted in 2018 after the Las Vegas shooting, which was the single most deadly mass shooting in history. Mark Joseph Stern covers the courts and the law for Slate. He recently wrote about the historical errors and far-right talking points featured in Clarence Thomas's majority opinion. The

The heart of the case lies in the wording of a law from the 1930s. It's written in these very broad terms. It bans any kind of part that can turn a regular rifle into a machine gun. And the administration decided, you know what? These devices, they have only one purpose. It's to create automatic firing. We are going to announce that they are unlawful and require individuals who have them to give them up.

But a number of bump stock owners abetted by the firearms industry filed litigation arguing that the ban was unlawful and that it exceeded the authority that was created by the federal ban on machine guns and could not stand on its own.

Yeah, let's talk about this difference between a semi-automatic rifle and a machine gun because the definition, it turns out, matters a lot to the decision. Yes, a huge amount. So the definition of a machine gun is a weapon that can fire automatically with a single function of the trigger. That language is really important, but we'll get back to that.

Bump stocks just create the continuous spray of bullets without the individual having to pull his finger back and forth and allows for much more carnage. And I'll just note, you know, bump stocks make rifles less precise in their firing. The weapon we're talking about here, it's not like something you would really use for hunting or any kind of lawful activity. This is a weapon that's made for mass shooters.

Justice Clarence Thomas wrote the majority decision for Garland v. Cargill. He ruled that the ban on bump stocks should be lifted because he thinks the devices cannot be classified as machine guns or helping turn a semi-automatic rifle into a machine gun. He included annotated images of rifles in his explanation. How did he come to that ruling? So there's really two factual errors here that are really important to understand. So the first thing is that he zeroes in on this phrase, a single function of the trigger.

Here he's looking at a 1934 definition of a machine gun. Yeah, and he claims that that was meant to limit this to a very narrow set of fully automatic guns where all you had to do was pull down on the trigger once and this internal mechanism sprung forth a spray of bullets. And he claims, well, with a bump stock, it's different. You have to hold your finger on the trigger. And that is a kind of human input that changes the game.

Well, in reality, Congress used that language because there were a bunch of different ways that you could fire a fully automatic weapon as they were developed in the 1930s. Some of them had triggers. Some of them had buttons, and you just put your finger down on the button. Some of them, you had to use belts on them. You had to lean on them a certain way. So this single function, it was about...

one human doing one thing to make the gun fire continuously. It wasn't, as Clarence Thomas said, about some kind of super technical inner workings of the gun that a bump stock allows for that original semi-automatic guns didn't. Yeah, it should be pretty obvious that what matters here is legalizing weapons that

with very little effort and very little training, can produce mass bloodshed in a short period of time. You know, Clarence Thomas, this is perhaps the most laughable part of his decision. He analogizes bump stocks to a shooter who has a lightning-fast trigger finger. So he suggests that there's really no difference between using a bump stock and moving your trigger finger back and forth really quickly. I defy you to find a human who could move their trigger finger back and forth

800 times in a minute, but that is the rate of fire for a weapon with a bump stock. And that leads to the other problem, which is he says, well, the, the, the law requires these guns to be automatic, but when you fire with a bump stock, you have to lean forward on the gun. And that means it's not automatic because you have human input. You know, you're leaning on it. It's no longer automatic. That is a history blind misreading of the text that,

that I think does a lot of violence to what Congress was trying to do here. How do we know that Congress anticipated that gun manufacturers would try to get around it? Because it's in the congressional record and all over the floor debates from the time. In the 1930s, there was this huge emerging problem of gangsters using what were sometimes called Tommy guns.

to do these killing sprees that ended up killing lots of civilians. And this sort of comes through if you watch like gangster movies from the 30s. There was this fear that gangsters weren't just shooting each other anymore, that they were shooting into the public, that they were spraying these bullets everywhere. This was a brand new kind of gun. And so if you read the floor debates surrounding this bill and look at what Congress wanted to do here, it was to ban every kind of gun in this genre.

and not allow for gun makers and bad guys to carve out these loopholes that essentially Clarence Thomas has now carved out. Some of the talking points that he cited in his opinion, the images that he copied and pasted, they came from an amicus brief authored by a group called the Firearms Policy Coalition. I hadn't heard of these people. Who are they?

This is a group that makes the NRA look moderate, by example. This is essentially an extremist group that often promotes violent rhetoric. It sells various merch and t-shirts supporting the abolition of ATF and various gun laws. They really don't accept any kind of gun regulation at all. And Clarence Thomas copied and pasted materials from their brief in this case, which

It's really notable anytime that happens because for a justice to do that, it says right there in Thomas's opinion, copyright, firearms policy coalition. You're essentially as a justice giving the thumbs up to that group. You're giving them the green light. You're saying, I approve of them. I trust them as a worthwhile source. This is a far, far right anti-government group that has a kind of feverish fantasy of every gun owner one day taking their weapons and potentially overthrowing a tyrannical government.

For them to appear in the United States Supreme Court's decision, which will, of course, be memorialized for as long as we have a Supreme Court and a country now, it suggests that the court is taking its cues not from any kind of expert or neutral party, but from radicals who want to strike down every gun law that exists, not just bump stocks.

Are there other recent examples that come to mind of this larger phenomenon of right-wing donors funding interest groups that in turn supply the Supreme Court with unreliable or highly contested information?

So West Virginia versus EPA was this major case about regulation of power plants, emissions at power plants. And the actual plaintiff in the case was West Virginia, which was a red state that was arguing that it...

needed to be freed from these onerous regulations of its power plants because they need to be able to emit more pollution, right? But if you look at who's filing amicus briefs, there are groups like Americans for Prosperity, which is the Koch group

that is largely supportive of pro-industrial moves and that is heavily intertwined with the same network of donors who stand to benefit from the decision that allows for more emissions from a power plant. The Buckeye Institute, which is a group that's dark money funded and supports deregulation. The Southeastern Legal Foundation, the Claremont Institute.

Even the Cato Institute, these groups that all come in on the side of industry, they're also funded by industry. And they look official. They look as though they're made up of real lawyers and experts and analysts who are just putting their best foot forward and trying to explain to the court what's at stake. But in reality, they have a vested interest in –

a particular party winning in this case in West Virginia winning, because what it really means for West Virginia to win this case is that industry wins the case and coal fired power plants get to keep pushing out these emissions and nobody's going to stop them because the Supreme Court has prevented the government from stepping in.

And when John Roberts wrote his majority opinion, joined by the other conservative justices, did we see once again these talking points from amicus briefs make their way into the justification? Absolutely. And I would argue that one of the chief holdings that John Roberts put forth in West Virginia versus EPA is bolstered by some of these amicus briefs. Because what John Roberts says is that this really important provision of federal law

law that allows the EPA to impose a new kind of system of regulations on emissions from power plants, that it's just like a regulatory backwater. Okay. That it doesn't really matter that Congress didn't think about it, that it's just kind of stray language that shouldn't mean anything. And the EPA can't use it to cite any power. Well, Roberts ended up running with that. That was like the heart of his opinion. He said, this is a back

water. It doesn't mean anything. It's nonsense. But I think that he was only able to get there because all of these amicus briefs came in, egging him on, rewriting the history of this statue, claiming that the Clean Air Act was much more modest than it actually was. This is a

landmark statue, a landmark statue that had been amended over and over again in order to capture more and more kinds of pollution. And yet when Roberts looks at it, he sees only this kind of minor statute that does almost nothing to protect Americans and the environment from emissions from coal-fired power plants. Why is that? Well, at a minimum, he gets his priors confirmed by amicus briefs that put forth a reading that I just don't think

aligns with what we see in the congressional record or the plain text

We know that all kinds of political and social groups file amicus briefs, right? It's not just conservatives who are trying to bring cases before the court or sway opinions. Like the ACLU, for instance, has been active for decades doing this. But you've argued that conservative groups are better funded and more sophisticated at supplying the court with information than groups on the left. Absolutely. And I think there's two main ways this happens. So first is like in the West Virginia case, where if you just look at the groups that are filing,

amicus briefs, it's all groups funded by industry. So industry is coming in and saying, hey, guys, here's some money. We want you to go tell the Supreme Court that the EPA can't regulate power plants. Well, there's no left side that's going to do the same with their groups. Like the ACLU isn't going to get a million dollar check from some pro environmental industry that doesn't exist.

saying, hey, go convince the Supreme Court to approve more regulations. There's just a bias in the system that's built toward deregulation. But I think the bigger problem here, and this is one that's very prevalent in the gun rights context, is that conservative donors are really smart about building up an entire ecosystem of thought and

that trickles down to the Supreme Court. And that was true of guns because basically the gun industry started funding scholarship. First, white papers, then law review articles, entire centers for so-called originalist jurisprudence. The gun industry would fund them to churn out this scholarship that purported to show that the Second Amendment protects basically an unlimited right to bear arms.

It's not always easily traceable because they're so good at erasing those connections. But there's enough evidence right there for us to see that the conservatives are playing this game in a way that liberals just aren't. Ketanji Brown Jackson drew criticism for quoting misleading information cited in an amicus brief about the mortality rate for Florida newborns. Do you know about this?

Yeah, this was an unfortunate error in Justice Jackson's opinion, and she was trying to defend affirmative action. I think it ended up somewhat undercutting her authority in the rest of the dissent. At the same time, it was one mistake in what was a string of accurate empirical data talking about the

adverse outcomes for Black Americans. I don't think it's the same thing because it didn't really lie at the heart of her argument. You could cut out a bunch of other stuff that she said, even if it's debatable, and she would still have this basic point that no one can really deny, which is that on the whole, Black Americans do worse than white Americans. And her ultimate point was that that is a legacy of slavery and Jim Crow.

I just think that's a different kind of mistake than what we're talking about with, say, Clarence Thomas or Neil Gorsuch, where they're manipulating the record to make history or make laws say something that they don't say. And, you know, sometimes the liberals make mistakes and they go back and incorrect it. Justice Kagan had this account of early religion in the United States that she made a mistake about. She had to go back and fix it. She did it. It wasn't a big deal. When it doesn't lie at the heart of their opinions, it doesn't matter nearly as much.

Are false facts, you think, showing up more often than they used to? I think so. And I think part of that is because the Supreme Court is more aggressive than it's ever been. It has been turbocharging Second Amendment rights, and it has also lost power.

pretty much all faith in regulatory agencies like the EPA that it is traditionally deferred to to make these factual findings. So what I think we're seeing is a court that just has a lot more faith in its ability to declare the truth once and for all. And I think it's no surprise that these errors tend to come out in highly contested cases that split the conservatives versus the liberals. That's when the conservatives will cling on to what we might call alternative facts

in order to make sure they can reach their desired endpoint and make it look like the truth aligns with their goals. Is there a way to hold the Supreme Court accountable for these factual errors? Is there anything to do about it? So direct accountability for the Supreme Court, almost never. These are people who were never elected to their position, who have lifetime tenure. And the only way to overrule them is to amend the Constitution, which we all know can't happen.

So one area that I do think there's some promise in is Congress coming back in and changing the law in response to the Supreme Court's mistakes. In some of these cases, like the machine gun case, Congress can absolutely come back in and fix the law and say, you don't understand what we were trying to do 100 years ago, so we'll have to do it again and be even clearer. Congress, more than anyone else, needs to look at what the Supreme Court is doing and

and say, we have to be the ones to say what the facts are, to put that in the law itself, to put it front and center before the courts, and to make them see that we are trying to enact a policy that's rational, that can't be undermined with loopholes, and that isn't susceptible to a kind of judicial deconstruction, which is seemingly the Supreme Court's modus operandi these days. ♪

Bleak. Mark, thank you very much. Thanks so much for having me on. Mark Joseph Stern is a senior writer at Slate covering courts and the law. Coming up, we follow a common route whereby false facts quietly make their way to the high court. This is On The Media.

Hey, nature lovers. The podcast Terrestrials is back. Radiolab's family-friendly podcast returns for a new season with new songs. I'm Lulu Miller, and on each episode, we'll take a nature walk and encounter a creature behaving in ways that will surprise you. And sometimes we just have to break out into song about it. That's right. Original songs about chromosomes, honeybees, lichen, and more. Search for Radiolab for Kids wherever you listen to podcasts and check out the newest episodes of Terrestrials today.

This is On The Media. I'm Brooke Gladstone. And I'm Michael Loewinger. Falsehoods can arrive at the court via dishonest lawyers or misunderstood research. But in the Bumstock case we just heard about, faulty research was codified into law by way of an amicus brief. That's a document submitted by so-called friends of the court to advise and inform the justices.

I called up Allison Orr Larson, professor of law at William & Mary, to learn how false facts get through the amicus machine unchecked and whether it was always this way.

No. I mean, if you go way back across the seas to England, the amicus brief was, I mean, it wasn't a brief. It was just a lawyer who happened to be in the courtroom who would help a judge out with a point of law that the judge may not have been familiar with. And since the amicus brief came to America, it's become an advocacy tool and everybody knows that. What I think is more recent is the use of it to fill in factual gaps.

That's something that I think became increasingly popular in a digital age when that information was so easy to find. Unreliable amicus briefs aren't a new phenomenon either. There was a 2011 case called NASA versus Nelson, which concerned background checks for contractors. And an incorrect statistic from a brief was referenced in the majority decision for that case. Another case that you write about is Gonzalez v. Carhartt. Right.

I wrote this law review article in 2014. It was called The Trouble with Amicus Facts. And it cataloged different sorts of errors amicus briefs make. But the one that I think has gotten the most attention was an abortion case from 2007, I believe, called Gonzalez v. Carhart. And Justice Kennedy cited an amicus brief for the factual claim that although he says there's no reliable data, women tend to regret their abortions.

And then the self-esteem drops and depression follows. And he cites for this a brief that was filed by women who allegedly had those feelings after having abortions. The women who felt this way were represented by a group called Operation Outcry. Exactly right. So the brief says it's just filed by the women. But if you dig into the brief, you realize that there's this advocacy group called Operation Outcry.

And the way that the testimony, as they call it, was collected is just by the women clicking a box on a survey. And most of the research that was cited in this brief and then ultimately cited by the Carhartt decision comes from a person named Dr. David Reardon, who I think he was an electrical engineer or something, but he has a Ph.D. in bioethics from a school that doesn't exist anymore and was not accredited.

And he has this very specific view about the emotional consequences of abortion on women. And it's a minority view in the field, not endorsed by the American Medical Association or the American Psychological Association. And what's really interesting about this example is that after Justice Kennedy cites to this brief—

That vein of abortion advocacy, the self-esteem, the depression, all of those claims, it really got a boost. It's like the citation to the brief

ended up elevating the significance of that type of claim in the real world. That's so backwards. Yeah. Well, it's just interesting for people that say, who cares? You know, maybe no one's reading these briefs. No, it matters. There's significant downstream consequences. Wow. I mean, that's just shocking. And shocking, too, when you consider the fact that in a trial court, there are so many rules about the kinds of facts and evidence that

that can be brought into the case, right? The level of amicus participation at the U.S. Supreme Court is significantly different than what you might see at a trial. So the reliance on an amicus brief to fill the shoes of an expert, that's something that's like a U.S. Supreme Court phenomenon.

So this is something that I remember scratching my head about when I first studied the use of amicus briefs in this way. There's a lot of rules of evidence that govern which expert witnesses can testify and about what. Who done it? Why did that person do it? Did they stop at the red light? Those are adjudicative facts or specific case facts. And none of those rules apply to so-called legislative facts.

Legislative facts are facts that the legislature might use to make a new law. It's a fact about the way the world works. Like, I am taking judicial notice that today is a Friday. I am taking judicial notice that, you know, the moon is a full moon today. Objection! And those don't have to go through adversarial testing because it's just exempt under the rules of evidence.

The number of amicus briefs that are being filed in these big Supreme Court cases has just exploded. Can you give us a sense of the way it used to be and how many amicus briefs justices might be exposed to now? Sure. Maybe it's helpful to give you a bit of comparison. In Roe v. Wade, which is 1973, there were, I believe, 23 amicus briefs.

And in Dobbs, which of course was two years ago that overturned Roe versus Wade, there were something like 136. What accounts for this sharp increase? Think about your own personal way you answer questions about the way the world works. You now want to Google it, right? Like it's all that information is accessible to you on your phone.

So the justices are the same way. They don't want to just look at a cold record or see what the experts said. They can Google it, too. They are hungry for that type of information. And the amicus briefs are right in front of them. So I'm a little confused by that. The justices don't get to decide who submits an amicus brief.

Well, not directly, but if they're citing them, they're creating the market for them. I mean, then everybody is going to file if the Supreme Court is listening. So it's a sort of self-reinforcing logic here. The more curious they seem about a larger number of briefs, the more likely people are to try to target them. Right. It's actually a pretty coordinated effort right now.

You have often a well-heeled client and you have sophisticated lawyers who think about, well, what type of information are the justices going to want to know? And what's the most effective way to get them that information and from whom?

And then they match up the client with the lawyer with the topic. Can you give an example of that? So, sure. One of the most famously successful amicus campaigns was in the affirmative action cases in 2003 that came from the University of Michigan. There was a brief that was filed by military leaders on the importance of having a diverse officer corps and having that officer corps come from elite universities.

And it was so influential that not only did Justice O'Connor cite it in her opinion, but she mentioned it by name when they announced the decision. And that's an example of a very smart lawyer for the Supreme Court Bar thinking, well, this is an unusual pairing, like to have this argument from the leaders of the military. That's probably surprising to the justices. And it's something that might be influential. And sure enough, it was.

And that's actually standard now is to have that kind of strategic amicus practice. Okay. So the justices get to wade through more information. More information is a good thing, right? I mean, why are we talking about it like it's a bad thing?

I know. So my husband always teases me and he says, all of your writing makes it sound like you're like a 90-year-old who hates the internet. It's not that I don't want them to be educated about the decisions they make. It's just that the tool that they're using to do so is old-fashioned and outdated. There's no real fact-checking. They're all filed by motivated groups. They're filed at the 11th hour in the litigation. So there's not a lot of time for even the parties to respond. And when that happens...

mistakes are going to be made, not to mention the significant temptation of confirmation bias, right? You're looking for something to cement your pre-existing worldview and, oh, look, there's an amicus brief to support you. How convenient. Let's talk about some of the different ways we can make the so-called amicus machine, that's your term, better. This month, a judicial panel approved a rule that would require clear disclosure of who is funding amicus briefs.

Is this new rule enough to make a difference, you think? I think that's a step in the right direction. It would be even better to have disclosure not just of who funds the brief, but who is funding the studies that the brief relies upon. And you wrote, quote, Yeah, exactly.

I think that's right. Of course you think it's right. You wrote it. Yeah, okay. That person's a genius. Can you explain what you meant? Yeah. I mean, I think the justices care about how they're perceived, particularly how they're perceived by people in the legal profession. And so they don't want to be citing garbage. So there's a reform potential in that, which is

allow them the information so that they can police themselves. I also think there's things we can do to limit the pool of experts who are actually submitting to the Supreme Court, drawing a distinction between amicus briefs that make legal arguments and those that make factual claims. So when you let in an expert witness at trial, that expert is not allowed to testify on questions of law.

And I think you could just import that same rule to the amicus practice. If you're going to give the court some history, let's not mix it with your advocacy. I mean, I think that's a small tweak that could happen. And in addition to greater transparency about who is

funding, the information that ends up in the briefs. You said another solution is just require that interested parties send amicus briefs earlier so that the court has more time to vet the information. And the parties. Like, I think if you adjust the timeline so that the parties can poke holes in the claims that are unreliable, that's another way to leverage the adversarial system to be a little bit of a fact checker. It's not perfect, but I do think that

The best system we've had for years and years and years is one that relies on two sides battling out and pointing out flaws in one another's evidence. So until we come up with a better solution, that seems to be what we should be leaning into now.

No one is holding the justices' feet to the fire when they make a factual mistake. These sort of structural changes that you're describing, they only really work if the justices themselves are committed to the project as well, right? Well, sure. I mean, but that's true of the entire legal system. If you believe that everybody's a bad apple, then, like, you know, I'm going to be out of a job. Right.

I mean, it's easy to get cynical and think that all hope is lost because, you know, there's no truth anymore and facts don't matter anymore and you just believe what you want to believe. And I mean, look, I get that. I think there's a lot of evidence to support that cynical view. There are some counterexamples, but they involve...

trial courts outside of the spotlight, not with celebrity justices. And one example that I found, there was some vaccine litigation years ago, and there were some faulty claims about a bad side effect of a vaccine. And you end up with these trial courts that are doing some very time-intensive, labor-intensive work

by asking on cross-examination these experts, well, where did you find that? Tell me about that decimal point. And we're like really nitty gritty.

That takes a lot of time, and maybe we don't have the appetite for it, but that's an example of the adversarial system working to expose unreliable fact-finding in trial at the court. It happened also in the marriage equality cases in California. There was a trial in the Northern District of California, and the experts, when they get on the stand and they present some faulty information about the fate of children raised by gay couples, like,

That information is exposed as unreliable, not state of the art, not peer reviewed. We have the tools to fact check. I don't believe that's happening at the U.S. Supreme Court level and maybe it's not possible. But I do think it's possible on a more general theoretical level. You're saying you're saying the court system is capable of fact checking. Yeah, I'm saying all hope is not lost.

What we've done is used an old tool for a new purpose without any upgrades. And that's a mistake. What do you think is at stake here? We see justices quoting amicus briefs in their decisions, that the number of briefs that are being submitted is growing, and the briefs are filled with information that is not vetted. I think the stakes are very high. And here's why.

In the law, reasons, that's our currency. We're not supposed to just be, you know, traveling the power market. We make decisions and then we have to back those decisions up with reasons. So if the reasons are tainted, if the reasons are backed up by authorities that aren't really authorities, then what are we doing? I mean, it's sort of existential in terms of the types of questions that the law is supposed to answer and the function of a judicial system in our democracy.

Thank you, Allison. You're welcome. Allison Orr Larson is a professor of law at William & Mary.

That's it for this week's show. On the Media is produced by Eloise Blondio, Molly Rosen, Rebecca Clark-Calendar, and Candice Wong, with help from Pamela Appiah. Our technical director is Jennifer Munson. Our engineer is Brendan Dalton. Katya Rogers is our executive producer. On the Media is a production of WNYC Studios. I'm Brooke Gladstone. And I'm Michael Olinger.

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