Saving the Supreme Court from Factual Embarrasment

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.

Reader Discussion

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on October 20, 2017 at 08:24:06 am

Spot on. Trial courts are for resolving facts; appellate courts decide issues of law. The two are separate and distinct functions. Confusing them leads to error.

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Mark Pulliam
on October 20, 2017 at 09:03:47 am

Professor McGinnis addresses three modern “authorities” on relevant fact: adjudicative facts, legislative facts, and empiricism. However, whereas “empiricism” refers to “the practice of relying on observation and experiment especially in the natural sciences” (Merriam-Webster online), McGinnis directs the reader to “the cusp of a golden age of social science empiricism” (hoover.org/research/age-empirical). In all this, there is no appreciation for ordinary fact or common sense.

For example, everyone knows that only an ovum from a female and a spermatozoon from a male may be used to conceive a child. But not everyone agrees the child has the right and dignity to be cared for by the man and woman who enacted the conception. If the couple does not intend care the ovum and spermatozoon may suffer life without love. Stealth to circumvent ordinary fact yields erroneous supreme opinion.

Everyone knows that the social scientist uses selective interviews with selective questionnaires and statistics to support an opinion he or she promotes. The cost to a civic people (civic citizens) is enormous, as described by Oren Cass in “Policy-Based Evidence Making,” National Affairs, No. 32, page 63. Some modern journalism schools teach that public opinion sets public policy and their social science departments determine public opinion.

In 1915, Albert Einstein created the general theory of relativity. In 2015, the theory became law. See livescience.com/49627-quantum-experiment-demonstrates-relativity.html and nytimes.com/2016/02/12/science/ligo-gravitational-waves-black-holes-einstein.html. In 1941, Einstein asserted that the laws of science and the law against lying come from the same source (samharris.org/blog/item/my-friend-einstein).

Science is a study method---a system whereby the immutable, repeatable evidence may be discovered and used to benefit forever. For example, the earth is like a globe. Also, civic citizens to do not lie. The object of study is the-objective-truth, and humankind is on an unelectable march to discover and conform. This forum has the opportunity to be a leading proponent of a civic culture based on the-objective-truth.

Lest I suffer nonsensical artificial humor, let me say I am reminded of gabe’s instruction that I should not express myself; that I should quietly read and consider the language of the legal scholars. What gabe never accepted is that I am acutely aware of conflict for dominant opinion and seek to establish a neutral umpire to which all actors may report: The umpire I suggest is the-objective-truth.

The-objective-truth informs us that there may always be opinion, jokers, liars and un-civic citizens. Therefore, law and law enforcement seem unwanted facts for the foreseeable future. In utopia, there would be no law and no courts---only civic citizens.

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Phil Beaver
on October 20, 2017 at 10:22:13 am

Just think how much "Junk-Science" receives Chevron/Auer Deference...

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Paul Binotto

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