On April 24, 2012, the Office of the Solicitor General (OSG) wrote to the Supreme Court to “clarify and correct” a factual statement in its brief in Nken v. Holder — a statement that the Supreme Court had explicitly relied on in its decisionIn her powerful article, Convenient Facts:  Nken v. Holder, the Solicitor General, and the Presentation of Internal Government Facts, NYU professor Nancy Morawetz explains that OSG regularly includes facts about internal government operations in its briefs that are neither part of the record below nor based on publicly available information.   Morawetz acknowledges OSG’s well-deserved reputation for producing “high quality briefs in which arguments are not overstated and representations about the record can be trusted,” but she is concerned that this one-sided presentation of extra-record facts is unfair and can mislead the Court, as illustrated by Nken.  To solve that problem, she suggests that OSG provide the Court and the parties with access to the evidentiary basis for any new facts included in its briefs so that all have a chance to examine, and possibly clarify or rebut, those assertions.

Morawetz’s article includes a disturbing description of what went wrong in Nken.  In its brief, OSG had informed the Court that it was the government’s “policy and practice” to “facilitat[e]” an alien’s return to the United States if a judge overturned a decision to deport that alien.  Accordingly, OSG argued that an alien’s removal from the United States did not constitute irreparable injury necessitating a stay of the removal order pending judicial review.  The Supreme Court sided with OSG, citing the “policy and practice” described in the OSG’s brief.  Immigration attorneys, many of whom had clients unable to return to the United States even after winning in court, pursued a Freedom of Information Act request to determine the basis for these statements.  (The FOIA case was handled by NYU’s Immigrant Rights Clinic, and Morawetz served as the supervising attorney in that litigation.)  OSG denied the request and made no effort to investigate the accuracy of its presentation to the Court, even after being presented with immigration attorneys’ evidence to the contrary.  Eventually, a district court ordered disclosure of the email exchanges upon which the OSG had relied, which revealed that in fact there was no consistent government policy.  Only then did the OSG write to the Court acknowledging the error and correcting the record.

As Morawetz explains, Nken v. Holder is just one case among many in which OSG provided the Court with extra-record information about internal government operations not supported by laws, regulations, or other publicly available documents.  The OSG recently acknowledged factual errors in its briefs defending the internment of Japanese Americans during World War II, and Morawetz cites numerous examples of briefs in which OSG states that it has been “advised” of facts that bolster its own arguments — facts that cannot be verified by opposing parties.  She declares that it is high time this practice come to an end.

Wisely, Morawetz does not advocate that OSG stop providing this extra-record information altogether, recognizing that the Court is “thirsty” for OSG’s inside information.  Rather, she argues that OSG should publicly disclose the basis for these factual assertions so that opposing counsel can determine if there is a reason to question OSG’s conclusions.  In light of OSG’s inaccurate statements in Nken, and the unknown veracity of the facts about internal government operations that it has provided to the Court on many other occasions, OSG should take that proposal seriously.  Full disclosure would benefit not only the Court and the opposing parties, but also OSG itself, which does not want to endanger its hard-earned reputation for writing fair and balanced briefs on which the Justices can rely.

Posted in Academic Round-up

Recommended Citation: Amanda Frost, Academic highlight: Morawetz on the Solicitor General’s presentation of facts, SCOTUSblog (Sep. 18, 2013, 3:59 PM), http://www.scotusblog.com/2013/09/academic-highlight-morawetz-on-the-solicitor-generals-presentation-of-facts/