Fact Checking the Supreme Court

ROMAN MARS: This is 99% Invisible. I’m Roman Mars. The Orange County Courthouse in Santa Ana, California, is a large granite and sandstone building from the early 20th century. It has Romanesque arches out front. Inside, there’s a courtroom, some uninspiring conference rooms, and elaborate wrought iron staircases. Last year, Jennifer Birch found herself underneath it all, standing in the courthouse basement.

JENNIFER BIRCH: It was kind of a half basement. They have little windows. It reminded me of a room that Indiana Jones might be in or something. It was very historical-feeling and like, “Okay, let’s not touch anything.”

ROMAN MARS: The Indiana Jones style room that Jennifer stepped into was the Orange County Historical Archives. Jennifer was there doing research for a group called Moms Demand Action. It’s an organization that advocates for gun control and regulation. Not all the members are actually moms.

JENNIFER BIRCH: Oh no, not at all. I work alongside men, students…

ROMAN MARS: But the thing they all have in common is that they care about gun control, which is exactly why Jennifer was in the courthouse that day. Moms Demand Action had dispatched volunteers like Jennifer to courthouse basements and local archives all over the country to dig up some of the oldest, most overlooked gun laws in the nation’s history. And their goal ultimately was to fact check the highest court in the nation.

GABRIELLE BERBEY: Basically, Moms Demand Action thought the Supreme Court got it wrong.

ROMAN MARS: That’s reporter Gabrielle Berbey.

GABRIELLE BERBEY: And not just in the content of the decision. The Moms suspected that a key historical fact used to decide one of the biggest gun cases in American history was just straight up factually inaccurate. The case in question was a landmark case from 2021 called New York State Rifle and Pistol Association Incorporated versus Bruen.

ROMAN MARS: If you’re a legal nerd, you probably know this case because it is a big one. The case dealt with some gun owners who had been denied permits to carry concealed firearms in New York State. The question of the case was whether a gun owner needs special circumstances for self-protection–something like a restraining order–to carry a gun hidden on their person.

GABRIELLE BERBEY: The Court ended up siding with the gun owners, essentially saying that most people should be able to carry concealed firearms if that’s what they want to do.

ROMAN MARS: This was a huge decision. It blew the top off gun restrictions across the country. But there was one thing in particular about the ruling that caught the attention of Moms Demand Action. They were fixated on how the Court explained its decision.

GABRIELLE BERBEY: In this case, the Justices hinged their decision on one key historical fact. Justice Clarence Thomas wrote the concurring opinion, and he said that, by and large, there were no laws about who can carry a concealed weapon passed before the year 1900–and because of that, concealed carry laws are not part of the “history and tradition of the United States.”

ROMAN MARS: Moms Demand Action looked at that fact and basically called bullsh*t. They believed that someone in the history of the United States must have tried to regulate concealed carry before 1900, and they believed this could make a difference in future gun cases elsewhere in the country. So, they set about proving it.

GABRIELLE BERBEY: So down in the Santa Ana courthouse, Jennifer Birch started from the beginning: ordinances from the 1800s.

JENNIFER BIRCH: I opened the book, and the pages were old. The writing was very difficult to read. The cursive was real.

GABRIELLE BERBEY: The archivist gave her some white gloves so she wouldn’t smudge the paper.

JENNIFER BIRCH: And I’m turning these pages, which feel very brittle. The first couple… Ordinance #1 would be like, “Here’s when we’re going to meet as Board of Supervisors. And then here’s some things related to where you would put your horse and things like that.” So, I’m flipping through this, going, “I really don’t know what I’m going to find. This definitely sounds like the wild west.” But when I first saw the words “concealed weapon” in the ordinance and I thought, “This is what we’re looking for,” my jaw, I’m sure, dropped. And I may have gasped.

ROMAN MARS: What Jennifer found was a law passed in 1892 that said people in Santa Ana could not carry concealed weapons. It was a law showing that, despite what Justice Thomas claimed, concealed carry bans were in fact part of the history and tradition of the United States.

JENNIFER BIRCH: And I felt like when I first saw that, not only did my heart rate go up a little bit, but–not to be overly dramatic–I felt like I was hearing their voices and their words coming at me from history. “This is remarkable. They cared about it. They cared about it a lot.”

GABRIELLE BERBEY: The Court said that, apart from a few outlying laws, the U.S. did not stop people from carrying concealed weapons for the purpose of self-defense–at least not before 1900. That was the big justification for the ruling. And yet here Jennifer was–holding one such law in her gloved hands. And Jennifer and the other moms didn’t just turn up one law.

JENNIFER BIRCH: So we went to the next county over and kept going. I thought there’s so much that we could uncover that I’m going to keep going until I feel like I’ve exhausted every city that was incorporated prior to 1900.

GABRIELLE BERBEY: Across the country, they kept finding other laws.

JENNIFER BIRCH: We found it in every single place we looked. In small cities, large cities…

GABRIELLE BERBEY: What Moms Demand Action discovered is that one of the biggest gun cases in American history was decided based on some questionable data. But it turns out this problem is bigger than just that one case–and it’s bigger than Moms Demand Action. The Supreme Court has a long relationship with bad facts.

ROMAN MARS: In 2017, ProPublica analyzed recent Supreme Court cases for factual errors. They found that, in 2013, Justice Kennedy claimed that DNA analysis and criminal cases can ID suspects with perfect accuracy. Not true.

GABRIELLE BERBEY: They also found a case where Justice Alito said that 88% of all companies perform background checks. But no one is even sure where that very specific number came from.

ROMAN MARS: ProPublica’s research even turned up in error in one of the most consequential voting rights cases of the 21st century. In the landmark case, Shelby v. Holder, Justice Roberts cited data about voter registration rates. His numbers turned out to be straight up wrong. And those bad facts were then used to strip away voter protections.

GABRIELLE BERBEY: In total, ProPublica found seven Supreme Court decisions, just in recent years, where the Justices got their facts wrong.

ROMAN MARS: Sometimes these mistakes didn’t have much impact on the decision itself, but sometimes they do. Sometimes Justices hinge their decisions on these facts. So, how is it that the highest court in the nation can get their facts wrong not once but again and again and again? And what even happens when you prove them wrong?

ALLISON ORR LARSEN: Well, okay, let me see if I can break this down.

GABRIELLE BERBEY (FIELD TAPE): Pretend I’m a high schooler.

GABRIELLE BERBEY: This is Allison Orr Larsen at William and Mary Law School. and according to Allison, the way the Supreme Court makes its decisions has changed a lot over the years.

ALLISON ORR LARSEN: I’m really interested in the way that Supreme Court decisions are made. And I’m particularly interested in the process that they use to make them.

GABRIELLE BERBEY: For a long time, the Court operated under what was called “legal formalism.” Legal formalism said that the job of any judge or Justice was incredibly narrow. It was basically look at the question and the question of the case in front of them, check that question against any existing laws, and then make a decision. That’s it.

ALLISON ORR LARSEN: They were just mechanically interpreting it–almost like a little law robot could do.

GABRIELLE BERBEY: Unlike today, no one was going out of their way to hear what economists or sociologists or historians thought; judges were just sticking to the law books.

ALLISON ORR LARSEN: Those wouldn’t have been part of the litigation in prior years, like, before the turn of the century–before 1900–because that’s not what we thought the judges were doing, so it wouldn’t make sense to brief them on that.

ROMAN MARS: The rationale for this way of judging was that if you always and only looked at clean, dry law, the decisions would be completely objective.

GABRIELLE BERBEY: But not everyone was buying that.

ALLISON ORR LARSEN: Right about the turn of the century, there’s a shift into more realistically confronting the fact that judges are filling in gaps and sometimes making law. Their decisions can’t be done by little robot judges.

ROMAN MARS: In the late 19th and early 20th century, a movement rose up to challenge legal formalism. They called themselves the “legal realists.”

FRED SCHAUER: The legal realists were a group of judges and legal scholars who were of the view that social and economic and political considerations were always part of judging and that judges would just mask it or disguise it.

GABRIELLE BERBEY: That’s Fred Schauer, professor of law at the University of Virginia. He says that the realists felt that the Justices weren’t actually as objective as they said they were.

FRED SCHAUER: Supreme Court Justices were often making decisions based on their own political views–their own economic views–and would disguise it in the language of precedents or earlier decisions.

GABRIELLE BERBEY: Basically, what the realist said is that judges and Justices may be trying to act like robots. But they’re humans with their own lived experiences and assumptions about the world. And they brought those things into the courtroom whether they wanted to or not.

ROMAN MARS: The realists said, “Let’s just accept that reality and try to balance it out.” They wanted to arm the judges with more information so those judges could make more informed decisions.

FRED SCHAUER: Holmes, a precursor of the realists…

GABRIELLE BERBEY: That’s Justice Oliver Wendell Holmes…

FRED SCHAUER: Said, “The life of the law has not been logic. It has been experience.” He was talking about what human beings know by being part of the world, including what judges know by being part of the world.

GABRIELLE BERBEY (FIELD TAPE): What motivated that movement? Did something happen? What was driving that?

FRED SCHAUER: I mean, the conventional wisdom is that a big change was the so-called “Brandeis Brief.”

ROMAN MARS: For a long time, the debate between the realists and the formalists had been mostly theoretical–that is, until the arrival of the Brandeis Brief.

GABRIELLE BERBEY: The Brandeis Brief came during a pivotal court case in the early 20th century, and the man at the center of that case was a legal realist and progressive reformer named Louis Brandeis.

FRED SCHAUER: He was a quite prominent practicing lawyer in private practice located in Boston.

GABRIELLE BERBEY: If the name Brandeis University means anything to you, this is the guy it was named after.

FRED SCHAUER: He was very involved in a range of, let’s call them, “progressive policy issues”–a lot of cases involving labor law, a lot of cases involving other aspects of employment law…

GABRIELLE BERBEY: As a young, zealous lawyer, Brandeis fought against the biggest railway monopoly to keep the Boston Common as a space for the people. He fought for better life insurance for all Americans, and he would take a lot of these cases pro bono. Around Boston, he became known as the people’s attorney.

ROMAN MARS: And then in 1907, Brandeis set in motion a shift that would for better and worse change the inner workings of the highest court in the nation.

GABRIELLE BERBEY: It all started when he agreed to argue a labor case in front of the Supreme Court.

FRED SCHAUER: A case called Muller versus Oregon, in which Oregon had a bunch of laws designed to make workplace accommodations for women, was challenged by employers.

GABRIELLE BERBEY: Brandeis was representing Oregon, which meant he was arguing on behalf of the women and against their employers.

FRED SCHAUER: Brandeis argued in a way that we would now think of as unfashionable–that because of the economic and physical weakness of women, it was necessary to have laws protecting them against the exploitation of employers.

ROMAN MARS: Here’s Allison Orr Larsen again.

ALLISON ORR LARSEN: You would be like, “Wow, that’s all just sexist stereotyping and not, like, hard science.” But–you know–it was 1908.

GABRIELLE BERBEY: As part of arguing the case, lawyers on both sides submitted their briefs. It’s basically a writeup of their client’s side of the story and any relevant laws–no facts about the real world. But rather than writing the typical brief, Brandeis went in a completely different direction. Instead of just including the basic, dry, legal precedent, he filled his brief with over 100 pages of facts that he thought should be present in the courtroom.

ALLISON ORR LARSEN: And in this case–it was called Muller versus Oregon–Brandeis files a brief. And it only has two pages of legal argument, and then it has 102 pages of factual claims of evidence about how women needed special protection from the hazards of long working hours.

ROMAN MARS: In his brief, Brandeis included medical reports, statistics, psychology studies–all showing that long working hours affected the “health, safety, morals, and general welfare of women.”

FRED SCHAUER: What would’ve been considered at the time not very much law and a great deal of sociological economic and related facts.

ROMAN MARS: Many of those facts have actually been debunked.

ALLISON ORR LARSEN: But the sort of pioneering part of that brief was the boldness of adding facts to the record–of making claims that aren’t legal arguments but are claims about the state of the world. And that’s a definite change. It was a change in terms of the emphasis on facts as opposed to law.

GABRIELLE BERBEY: Brandeis was the first lawyer to go before the Supreme Court and say, “Hey, Justices. You need to consider facts on the ground when you make decisions. Don’t just look at the law.” Basically, he was asking them to understand facts about how the world works to make better legal decisions.

ROMAN MARS: Brandeis took a risk in submitting the brief, and it paid off. The Justices read the brief and all the information he had provided, and they ruled in the women’s favor.

FRED SCHAUER: The fact that Brandeis won made it even more respectable to write a brief like this.

GABRIELLE BERBEY: Fred is quick to say that the Brandeis Brief didn’t suddenly override an entire century of tradition, but it did crack the door open for these outside facts to enter the Court.

FRED SCHAUER: This is all gradual. The way in which the use of sources changes rarely is dramatic. It’s usually somebody does it, they get away with it, and then it becomes more respectable.

GABRIELLE BERBEY: Before this point, even legal realists wouldn’t have written briefs that the Justices might just ignore. But now, they basically had a stamp of approval. That stamp only became more official when Louis Brandeis himself was appointed to the Supreme Court eight years later.

ROMAN MARS: Over the next few decades, legal realism completely transformed the Court’s landscape. Not only did it change the way lawyers worked, it changed the way judges worked, too. Judges and Justices started taking it upon themselves to read books and articles related to the cases that they were in the process of deciding, which today seems obvious. But this was all new territory.

FRED SCHAUER: They would rely on published books of sociology and economics, occasionally published books of history…

ALLISON ORR LARSEN: And the Justices like it. They are hungry for this information.

GABRIELLE BERBEY: From the beginning, Brandeis and the legal realists envisioned the Brandeis Brief as a tool to let them push forward progressive causes. And arguably the biggest moment of triumph for that cause came with Brown versus Board of Education.

ROMAN MARS: Nearly 50 years after the Brandeis Brief, the issue of segregation reached the Supreme Court. As part of the case, the Justices set aside what they assumed about the world and read as much as they could about the psychological impact of segregation. And now, thanks in part to that outside information, segregation is unconstitutional.

GABRIELLE BERBEY: Or in Roe versus Wade, where Justice Blackman holed himself up in the Mayo Clinic Library in Minnesota to read everything he could about the medical science of abortions. None of that would’ve happened before Brandeis and the legal realists stepped in.

ROMAN MARS: There’s no arguing with the fact that the Brandeis brief changed the game. It also did exactly what Brandeis hoped it would. The Brief let progressive lawyers pull a whole wealth of information into the courtroom so they could keep social reform moving forward.

GABRIELLE BERBEY: Which seems like a good thing. In a way, it does make sense to bring the Justices down to earth from their high-minded, lofty legal theories. The realists thought they’d created a world where judges would learn the real facts on the ground and make better legal decisions because of it. But when the rubber hit the road, things went a lot differently than they imagined.

ALLISON ORR LARSEN: And you wonder, “Do we want the Justices just burying their heads in the sand and not thinking about the context of the decisions–the decisions they make that are going to affect millions of people?” No, I don’t think that’s a better world at all. But there’s other things to consider in terms of who is telling them what and for what purpose.

GABRIELLE BERBEY: Here’s the thing though. The Brandeis Brief was–at its core–a tool. The progressives weren’t the only ones who could wield it. While the reformers were out celebrating wins like Brown v. Board and Roe v. Wade, they had set in motion a change that would eventually derail some of their biggest wins.

ROMAN MARS: And at the center of that change was a thing called an “amicus curiae brief” or “amicus brief” for short.

ALLISON ORR LARSEN: It stands for “friend of the court.” It’s a Latin phrase.

ROMAN MARS: You’ll also hear these referred to as “amicus briefs,” which is also right.

GABRIELLE BERBEY: These are briefs that are typically written by people or organizations who don’t have any role to play in the case. They’re not lawyers for either side. They just have an opinion about how the judges should rule and why. So, they write an amicus brief saying how they think the case should go.

ROMAN MARS: Amicus briefs are pretty benign in theory. The idea is that they give perspective, research, or context about an upcoming case. Unlike regular briefs where the lawyers in the case write in, these are written by people outside the case. Anyone–any member of the public–any organization can submit these briefs. All you need is a lawyer registered with the Supreme Court Bar to help you file.

ALLISON ORR LARSEN: The ones I think that are the most influential on the Court are briefs that add facts–expertise that they might not get from the record below or from the party briefing.

ROMAN MARS: In a way, amicus briefs are exactly what legal realists like Brandeis wanted. They’re a means of getting information from the real world into the courtroom.

GABRIELLE BERBEY: Amicus briefs flowed into all the big cases of the 20th century–Roe v. Wade Bush v. Gore–and slowly, over the decades, they became a fixture of the courtroom. Then in 2003 came a case that pushed the amicus brief past its humble origins and into the spotlight.

ARCHIVE: The opinion of the court number 02241, Grutter against Bollinger, will be announced by Justice O’Connor.

ROMAN MARS: The case was a challenge to affirmative action at the University of Michigan. And as part of the case, amicus briefs poured in from interested parties. The Justices heard the case, they read the briefs, and they made a ruling, in this case, upholding affirmative action. But here’s where the game starts to change.

GABRIELLE BERBEY: When Justice O’Connor delivered her opinion in the case, explaining why the Court cited the way it did, she mentioned one specific amicus brief that the Court had received. It was submitted by members of the military in support of affirmative action.

JUSTICE O’CONNOR: High-ranking, retired officers and civilian military leaders assert that a highly qualified racially diverse officer corps, drawn in large part from college ROTC programs, is essential to our nation’s security.

GABRIELLE BERBEY: This was a big deal. For the first time, Justices were showing that not only do they read these briefs, amicus briefs actually play a big role in helping them make decisions–so much so that they’ll cite them in their opinion announcements. At the time, this military brief actually helped save affirmative action.

ROMAN MARS: When Justice O’Connor referenced specific amicus briefs in an official Court decision, it sends a clear message: if your side sends the right amicus brief, that could decide the case.

ALLISON ORR LARSEN: So it was in many ways a debutante moment–a coming out party–for the power of amicus briefs, I think, that led members of the bar to realize, “You know what? We really have a chance of influencing the Court’s decision here. And we need to think strategically about who we get to say what.” So, there’s just a dramatic uptick–a dramatic growth spurt–of amicus briefs.

ROMAN MARS: It became clear very quickly that amicus briefs were powerful. But in the words of Spider-Man’s late, great Uncle Ben, “Power is a hell of a drug.”

GABRIELLE BERBEY: If amicus briefs started out as tools for Justices to help them understand facts about our world, they were now essentially weapons for both sides of a case. And the fact that amicus briefs were now an integral part of the Court highlighted one tiny, little design flaw–namely that there is absolutely no mechanism in place for making sure that anything in those briefs is actually true.

ROMAN MARS: The dirty secret here is that the Supreme Court doesn’t have any fact-checking mechanism for amicus briefs. None. There’s no fact-checking for anything that the judges read to decide their cases. To be clear, there’s a fact-checker for this podcast right now; these words right here are being fact-checked. Hey Graham. And yet for the highest court in the land–the Court making decisions that changed the course of millions of lives–nothing.

GABRIELLE BERBEY: With the information overload following the Brandeis Brief, the cart got ahead of the horse in a big way. But there is actually one thing standing between the Supreme Court Justices and a fire hose of sophisticated misinformation–and that is a bunch of overworked, twentysomething law clerks.

ALLISON ORR LARSEN: Oh boy, I was young. I think I was 27 years old.

GABRIELLE BERBEY: Allison was a law clerk under Justice Souter a couple of years after graduating law school. And most clerks are around that age.

ALLISON ORR LARSEN: The wacky part about it is you end up with pretty green, young lawyers who are really at the seat of power on the legal system. So, you have access to the very, very top, even though you are brand new.

GABRIELLE BERBEY: As a clerk, Allison had a ton of tasks, like reading all the cases filed to the court, suggesting which ones the Justices should take, helping the Justices prepare for oral arguments, helping them write decisions, and on top of all of that, she and her fellow clerks also had to read amicus briefs and any outside information the Justices wanted to know about.

GABRIELLE BERBEY (FIELD TAPE): How did you know you weren’t getting something wrong?

ALLISON ORR LARSEN: You didn’t. You can certainly do your own research for sure, but remember that there’s limited hours in the day. So, you’re working very hard and under the time pressure of litigation. And there’s only four law clerks for every chambers.

GABRIELLE BERBEY: So if you’re a law clerk and you have five amicus briefs coming in, you might be able to fact check those or at least think critically about who’s writing them. But in the biggest cases–the most high profile ones–there are often hundreds of amicus briefs flowing in from all over the world.

ALLISON ORR LARSEN: You have hundreds of these briefs on the library cart. And you’re asking young lawyers–really–to be able to identify the reliable ones from the unreliable ones. Sometimes that’s possible, but sometimes it’s not.

ROMAN MARS: So law clerks on a deadline are pouring over amicus briefs. They’re reading whatever outside research their Justices ask them to find, and their job doesn’t even technically include fact-checking any of it.

GABRIELLE BERBEY: And it’s not that no one noticed this problem until it was too late or that no one ever tried to solve it.

ROMAN MARS: In the 1980s, one man did try and proposed the Court do something about its fact problem. His name was Kenneth Culp Davis.

ALLISON ORR LARSEN: Kenneth Culp Davis was a very famous law professor who taught administrative law. And Professor Davis’ view was we should have something sort of like the Congressional Research Service that helps the courts.

GABRIELLE BERBEY: Basically an entire research department to help the Court parse through all of these outside facts coming in through briefs and just general research. Kenneth went on speaking tours throughout the country, preaching the need for real change in how the Court educates itself.

FRED SCHAUER: We came out of a recognition that judges were looking at outside facts all the time and wanting to add some more discipline to that.

GABRIELLE BERBEY (FIELD TAPE): What happened to Kenneth Culp Davis’ proposal?

FRED SCHAUER: Nothing.

GABRIELLE BERBEY (FIELD TAPE): Why not?

FRED SCHAUER: Courts are reluctant to sort of delegate their responsibilities to others. Judges are comfortable with their own knowledge–maybe too comfortable.

GABRIELLE BERBEY: Kenneth’s proposal didn’t get anywhere because the Court thought that any fact-checker would be too political–that no one could be objective enough to sort through and fact-check all the information that comes into the Court.

ROMAN MARS: It’s been about 50 years since the Court rejected Kenneth’s vision for reform. And the situation today is possibly even worse because we’re not just dealing with the issue of what is in the briefs. We’re also dealing with the problem of where those amicus briefs are coming from.

GABRIELLE BERBEY: The amicus briefs of today are no longer the quaint little letters we saw showing up after the Brandeis era. Now we have a certified amicus brief industrial complex. Lawyers today don’t just wait for experts supporting their views to weigh in. They actively reach out to people or interest groups they want to write in. And they’ll dictate what precisely they want those amicus briefs to say.

ALLISON ORR LARSEN: We call it “amicus wrangler” and “amicus whisperer.” So, you need somebody who recruits. “You know what? It’d be great if we had a historian to say this. Oh, you know what? We should get the military leaders to say that.” And then you sort of coordinate the messaging so that the Supreme Court receives the information that you want the Supreme Court to receive from the people that you want endorsing those views.

GABRIELLE BERBEY: Those recruited amicus briefs might have good facts. They might not. They could be written in good faith. But, again, they might not. Either way, hundreds of these amicus briefs flood into the hands of law clerks who have no capacity and no system for fact-checking. And that is the information that the Supreme Court uses to make its decisions.

ALLISON ORR LARSEN: And it’s all a much more orchestrated dance than people otherwise believed.

GABRIELLE BERBEY: It’s like Brandeis and the legal realists opened up the faucet to facts, and now we’re drowning in them.

ROMAN MARS: The result of the amicus brief industrial complex is that, in the worst case scenario, the side with more money can drum up more amicus briefs, and that gives them a huge advantage. And even in the best case scenario, there’s essentially an information deadlock. The Court has a ton of very convenient facts from both sides. And in the end, it’s up to the Justices and their chosen clerks to decide which facts to actually believe.

GABRIELLE BERBEY: The idea behind the Brandeis Brief was that if only the Justices could have access to all the background information they needed, they could make a rational decision. But more information doesn’t necessarily solve the problem.

ROMAN MARS: Because of this fire hose of information, there is always an amicus brief for the opinion that you already hold.

GABRIELLE BERBEY: What ends up happening today is that a bunch of parties send in amicus briefs–some which inevitably contain errors–and the Justices end up cherry-picking the facts that align with what those Justices value most, which in the case of our current Court is very clear. They’re by and large obsessed with one thing.

SPEAKER #1: But then you look to history and tradition–

SPEAKER #2: You go right to history and tradition–

SPEAKER #3: If we’re looking at that history and tradition–

SPEAKER #4: And the relevant history and tradition exhaustively surveyed by this Court–

ROMAN MARS: The current Court has put a lot of emphasis on history and tradition.

ALLISON ORR LARSEN: And that means you have instructions from the Supreme Court to the lower courts, “Go ahead and review all of the history of, for example, firearm regulations in this jurisdiction. And come up with the history and tradition.” So, is that quest a factual one or a legal one or a little bit of both? I think that’s a really important question, and I think we’re just now beginning to wrestle with it.

ROMAN MARS: This very specific, very consistent lens of history and tradition is what brings us back to the courthouse basement, where volunteers like Moms Demand Action have been looking for concealed carry laws in archives across the nation.

GABRIELLE BERBEY: Remember, the moms are trying to find evidence that the whole premise of the Court’s ruling in Bruen was just straight up factually wrong. And the Moms did find proof. Justice Thomas said that before 1900 concealed carry laws were not part of our history and tradition. And yet Jennifer Birch and the Moms Demand Action volunteers found a ton of these laws in archives all across the country.

ROMAN MARS: But here’s the thing–here’s the worst part. This information was sent to the Justices in Bruen. Historians had written amicus briefs to the Court, already pointing out that concealed carry bans existed in the 1800s. It’s just that you also had historians arguing the exact opposite. It’s not clear what information was true or false in any of these briefs or even which ones reached the Justices. What is clear is that, out of all these briefs, the Justices made a choice about which pieces of information they took as fact.

ALLISON ORR LARSEN: So you had historians on one side and historians on the other. So, you had some historians saying, “Actually, there’s a long history and tradition of regulating the right to carry out in the open,” and then historians on the other side saying, “Nope, not at all. The right to bear arms has included the right to open carry, and the New York law in question is an outlier.” So, it ultimately was up to five Justices to decide which slate of historians they believed.

GABRIELLE BERBEY (FIELD TAPE): So, the amicus briefs kind of became a battleground of who gets to say what history is?

ALLISON ORR LARSEN: Yes.

GABRIELLE BERBEY (FIELD TAPE): So let’s say that the Justices do their factual research and then they get something wrong. They cite a source that has incorrect information, but then that’s in the final decision. What happens when–let’s say–they do nothing?

FRED SCHAUER: Nothing. The short answer is nothing.

GABRIELLE BERBEY (FIELD TAPE): But why? Why nothing?

FRED SCHAUER: I think it was Justice Jackson of this Supreme Court who said, “We are not final because we are infallible. We are infallible because we are final.”

GABRIELLE BERBEY (FIELD TAPE): Yeah, that’s so hard for me to sit with.

FRED SCHAUER: Somebody’s got to have the last say, and very often judges have the last say. There are lots of things in the law and lots of things in the Constitution that we might now think of as politically or morally or even empirically wrong, but it’s there. That’s what makes it authoritative. That’s when parents with some frequency say to their recalcitrant children, “Because I said so.” “Because I said so” is a big part of the law.

ROMAN MARS: In other words, there’s nothing to say that the Court needs to listen when faced with evidence that they got it wrong. In fact, it is not their job to worry about that. Their job is to make a decision and move on.

GABRIELLE BERBEY: These old laws that the Moms are finding–they can only really be used in amicus briefs for the next gun case, whenever and whatever that is. The Moms can’t overturn Bruen or even guarantee that next time their information will rise above the hundreds of other briefs to actually make it to the Justices. And even if it does rise to the top, the Justices can still choose to ignore it, which is precisely the problem.

ALLISON ORR LARSEN: I think in some of these cases, the honest truth is they know how they want to rule and they look to the history to buttress their view or take down the other side. I think that’s the sad reality.

GABRIELLE BERBEY: In a way, this is the Court redeciding what our history is. And even though it is admirable for Moms Demand Action to be digging up these old laws, they’re also playing by the rules of a fixed game–a game where the Court decides what history is. So, I asked Allison, “What is the point? Why even do what they’re doing?”

ALLISON ORR LARSEN: One effort might be to show how crazy it is to do it this way. If you have a constitutional test that’s steeped on history and tradition, and then you are the ultimate decision maker on what that history is, are we forever bound by your view about what history is? That’s a tension that I’ve yet to figure out.

GABRIELLE BERBEY: Even though it might be futile and even though nothing might change, what the Moms are doing is proving that the Court may be final, but that doesn’t mean it’s factual. And there is something to be said for setting the record straight.

ROMAN MARS: After the break, I talk with Gabby about the women behind the man behind the Brandeis Brief. So, we’re back with Gabby Berbey, who reported that story. Hey, Gabby.

GABRIELLE BERBEY: Hi.

ROMAN MARS: So, Louis Brandeis is this pivotal person in the story because he was the first person to really open up the Court and the Justice’s minds to considering facts about the real world when he wrote his infamous Brandeis Brief. But you have some facts about those facts, right?

GABRIELLE BERBEY: So, we know from the story that Brandeis had this mythical quality of being this person who changed everything about how the Supreme Court considered facts about the world when making decisions. But while I was researching, I found out that Brandeis actually did not write this brief that he is so famously known for–at least not most of it.

ROMAN MARS: Okay. So, wait. So, Louis Brandeis did not actually write the Brandeis Brief?

GABRIELLE BERBEY: Nope. So, here’s what I found. I’m going to set the scene. The year is 1903. Oregon State adopts a law that sets the maximum number of working hours for women who work in factories or in the laundry business at 10 hours a day. And this is an effort that’s championed by labor reformers, and of course it gets challenged by business owners and brought up to the Supreme Court. So, at that point, a prominent labor rights nonprofit, led by this woman named Florence Kelly, wants to make sure that Oregon has the best lawyer to represent its labor case. And at this time, Brandeis is already known as the people’s attorney. He is fighting the good fight for the labor movement. And Florence Kelley–with the help of her chief assistant–recruits Brandeis to represent Oregon. But Kelley already has an in with Brandeis–and that is because her chief assistant at this labor rights organization is none other than Louis Brandeis’ sister-in-law, a woman named Josephine Goldmark.

ROMAN MARS: So, this is, like, a whole family of social reformers right here.

GABRIELLE BERBEY: They probably have extremely passionate Thanksgiving gatherings at the Brandeis home.

ROMAN MARS: Okay, so I assume Florence Kelley has Josephine reach out to Louis Brandeis. He comes to represent Oregon. And then Brandeis goes on to write this famous Brandeis Brief. Is that how that happens?

GABRIELLE BERBEY: Yes. Well, he did agree to represent Oregon, and he did want to present this groundbreaking brief. But he doesn’t actually do that research for this groundbreaking brief himself. He has his sister-in-law, Josephine Goldmark–the assistant who helped recruit him–do pretty much all of the research for him.

ROMAN MARS: Okay. That sounds familiar. Yeah. Okay.

GABRIELLE BERBEY: Yeah. So, Josephine and her sister, along with some volunteers, scour libraries all over New York looking for facts about how dangerous excessive working hours are for women. And they find all this data from factory reports, doctor reports, and all of this other information that is proving that long working hours are harmful to health. And in the end, they end up gathering together the research that would fill 98 out of the 113 pages of the Brandeis Brief.

ROMAN MARS: So, the irony is that he’s outsourcing 90% of the work of this case about how harmful excessive working hours are for women, and he’s doing that to the women in his life and taking all the credit for it. It’s pretty on the nose.

GABRIELLE BERBEY: But piling on even more irony to the situation, this brief that was known for busting the door open to facts entering the Court was filled with a ton of facts that have since been debunked. So, for example, Brandeis quoted this medical report that said that “women had more water in their blood and their muscles than men,” and I guess somehow that contributes to weakness, which is not true.

ROMAN MARS: Yeah, I guess I figured that one out. In the story, we talk about this as this unfolding problem–that you introduce briefs and then there’s all these facts and then later on they need to be fact-checked. But it turned out that the very first brief needed to be fact-checked.

GABRIELLE BERBEY: Yeah, from the beginning, it’s like this was already a flawed experiment. It’s not like it went off the rails later. But the bad facts of the Brandeis Brief aside, Josephine–his sister-in-law–she did go on to continue fighting for labor reforms for women throughout the 20th century. She wrote a book called Fatigue and Efficiency, which argued that fatigue from overwork led to a decrease in efficiency. She worked with the Factory Investigating Committee of New York after the Triangle Shirtwaist Factory fire. And she became kind of, like, known in the labor rights movement for backing up her ideas and her arguments with rigorous factual research about labor laws. So, my argument will be to put forth a motion to change the Brandeis Brief to the Goldmark Brief.

ROMAN MARS: Okay. Motion Granted. Thank you, Gabby.

GABRIELLE BERBEY: Thank you.

ROMAN MARS: 99% Invisible was produced this week by Gabrielle Berbey–edited by Kelly Prime. Mix and music by Swan Real. fact-checking by Graham Hacia. Kathy Tu is our executive producer. Kurt Kohlstedt is the digital director. Delaney Hall is our senior editor. The rest of our team includes Chris Berube, Sarah Baik, Martín Gonzalez, Jayson De Leon, Emmett FitzGerald, Gabriella Gladney, Christopher Johnson, Vivian Le, Lasha Madan, Jeyca Maldonado-Medina, Neena Pathak, Joe Rosenberg, and me, Roman Mars. The 99% Invisible logo was created by Stefan Lawrence. We are part of the Stitcher and SiriusXM podcast family, now headquartered six blocks north in the… I’m just remembering that someone on the Discord said, “Do you move six blocks north every week, in which case you’d be in the Sierra Mountains or something?” Anyway, now headquartered six blocks north of downtown, where we used to live, in the Pandora building… in beautiful… uptown… Oakland, California. You can find us on all the usual social media sites as well as our brand new Discord server. There are over 3,500 people talking about architecture, talking about The Power Broker, and talking about all kinds of fun things. Please join us there. There’s a link to that, as well as every past episode of 99PI at 99pi.org. Should I have a joke about despite backing up her rigorous research about labor laws? And I would say, “Despite the copious amounts of water in her bloodstream…”

GABRIELLE BERBEY: “Despite her watery blood.”

ROMAN MARS: “Extremely watery blood?”

GABRIELLE BERBEY: Yeah. “Despite all that water.”