We normally think of judicial review of legislation as a zero-sum game, but it has unseen benefits.
In the New York Times yesterday John Pfaff reflected on a serious problem at the Supreme Court. Increasingly its opinions rely on statements of facts that are later determined not to be true. And Professor Pfaff is also right that the Court as institution is not well designed to find facts. He notes correctly that opinions often rely for their assertions on amicus briefs of experts. But the obvious problem is that these briefs are generally pieces of advocacy seeking a particular result.
Unfortunately, his solution of creating a technical body of advisers to the Court for sorting out factual determinations is unwise. Experts can also make mistakes and in some areas have strong partisan and methodological biases. They would also necessarily work in secret.
Chip Mulaney and I have argued for a different solution: unless the facts on which a holding turns are obvious, stipulated, or reflect an adversarial process below, the Court should remand the case for factual findings by a trial court. It could then choose to hear any relevant parts of the case again on a full factual record. As an analogy, Rule 201 of Evidence sharply limits judicial notice of any adjudicative facts that could be reasonably contested or involve some level of uncertainty. See Rule 201 (limiting judicial notice of adjudicative facts to “those generally known within territorial jurisdiction of the trial court or capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned”).
A judge thus determines such facts after an adversarial hearing unless parties stipulate to them. This process is transparent and also has the virtue of a neutral fact finder focusing specifically on the relevant facts. In the Supreme Court, in contrast, even facts central to the holding have sometimes never been publicly vetted until they show up in an opinion.
To be sure, Rule 201 applies by its terms only to adjudicative facts. But it principles should also be applied to legislative facts, like the question of whether black voters in the south still face substantial discrimination. Legislative facts are often even harder to determine than adjudicative facts and they can underpin a ruling that will bind the nation, rather than a few parties.
Sadly, as our law becomes more based on policy calculations that depend heavily on factual inputs, a revision of appellate procedure is ever more necessary if the Supreme Court reports are not to become full of junk or at least contestable evidence. It is true that under our view the Court would have to remand some issues back to the trial court. The process recommended would in some cases delay decisions but it would improve the quality of precedent that may last for ages. It would also take away some power from the Supreme Court, but it is an erratic power that does no good to to its reputation. Finally, our suggested procedure better respects the virtues of empiricism in an empirical age.