Using science to influence the Supreme Court on the right to refuse treatment: amicus curiae briefs in Washington v. Harper.

Abstract

The Supreme Court's use of empirical behavioral science data has grown dramatically in the 40 years since Brown v. Board of Education. Most of these data are submitted in amicus curiae (friend of the court) briefs submitted by parties with an interest in the outcome of the significant mental health law cases coming before the court. The increasing use of such briefs raises important questions. Is there evidence that the court is actually influenced by such briefs? Can scientific/professional organizations present scientific data objectively in a clearly adversarial document? A review of the nine amicus briefs filed in Washington v. Harper, a right to refuse treatment case, and a comparison of the Court's opinion with that of the dissent demonstrate that both the majority and the dissent refer to arguments contained in the briefs, incorporate elements of these arguments, and occasionally paraphrase references cited in the briefs. It remains unclear whether the Court uses such arguments to formulate opinions or to justify them. A comparison of the briefs presented by the American Psychological Association and the American Psychiatric Association highlights the challenge to scientific objectivity inherent in participation in the amicus process.