At some point, I want to write about whether the facts of Supreme Court cases really matter. The court frequently gets stuff wrong–compare fact patterns to the constitutional stories (off the top of my head, I’m thinking of Dale Carpenter’s Lawrence v. Texas, Book, Jim Chen’s article on Wickard v. Filburn, etc.). Plus Alli Larsen’s article on legislative facts in SCOTUS opinions, finding that by-and-large, the Court looks to facts outside the record. Elsewhere, I have focused on the Court’s reliance on empirical facts–that are often contested–as facts in the record. Same for amicus briefs that introduce evidence not in the record.
So, do the facts really matter? Michael Dorf alluded to this point.
If bad facts make bad law, does ignoring facts makes better law?
And is my work on constitutional places is irrelevant?
Another article for the pile. In due time.
Update: Larsen has a good post at SCOTUSBlog about her article:
Supreme Court Justices routinely answer factual questions about the world – such as whether violent video games have a harmful effect on child brain development or whether a partial birth abortion is ever medically necessary. The traditional view is that these findings – often called “legislative facts” – are informed through the adversary system: by reviewing evidence on the record and briefs on appeal. Routinely, however, the Justices also engage in what I call “in house” fact finding. They independently look beyond the briefs and record to answer general questions of fact, and they rely on their discoveries as authorities. To be sure, judges have always done this. We have all heard the stories of Justice Blackmun holed up in the medical library at the Mayo Clinic during the summer of 1972 studying abortion procedures. And the Federal Rules of Evidence contain no rule restricting it; the rule about judicial notice specifically exempts legislative facts from its scope.
But times have changed. The world has recently undergone a massive revolution in the way it receives and evaluates information. No longer do Justices need to trek to the library to look up factual questions. Instead they can access virtually infinite amounts of factual information at the click of a mouse. If the Justices want more empirical support for a factual dimension of their argument, they can find it easily and without the help of anyone outside of the Supreme Court building.
I like this sentence:
Couple this reality with the new instant ability to find facts to support almost anything, and confidence in judicial fact finding outside their areas of expertise diminishes significantly.