I have blogged in the past about Allison Orr Larsen’s interesting work about how the Supreme Court relies on “legislative facts,” that is, facts outside the record below. I think her analysis is spot on. As a former district court clerk who once really messed up by putting arguments in a draft opinion that were raised in summary judgment, but not in complaint, I learned my lesson about what it means for arguments to be found within the 4-corners of a complaint. As a court of appeals clerk, I learned vey well what it means to raise arguments and introduce facts not in the record. Yet, both of these lessons seem to be missed at the U.S. Supreme Court which frequently considers facts outside the record, and indeed invites attorneys to argue positions abandoned by the parties! It seems that all the normal rules of adjudication go out the window for the Supreme Court. But, it’s SCOTUS so they can do what they want.

But that raises an interesting question that Larsen addresses in a new paper in the Pennsylvania Law Review, titled “Factual Precedents.” Should lower courts be citing facts from SCOTUS opinions, knowing full well how lax the Justices are about getting facts right. Larsen says, it’s not a good idea. Here is the abstract from SSRN:

Lawyers and judges speak to each other in a language of precedents – decisions from cases that have come before. The most persuasive precedent to cite, of course, is an on-point decision of the U.S. Supreme Court. But Supreme Court opinions are changing. They contain more factual claims about the world than ever before and those claims are now rich with empirical data. This Supreme Court fact-finding is also highly accessible; fast digital research leads directly to factual language in old cases perfect for arguments in new ones. An unacknowledged consequence of all this is the rise of what I call “factual precedents:” the tendency of lower courts to cite Supreme Court cases as authorities on factual subjects – as evidence that the factual claims are indeed true. Rather than citing, for example, evidence from the record to establish that carpal tunnel syndrome regularly resolves without surgery, lower courts instead find language from a Supreme Court opinion to cite for that point.

This article carefully describes how lower courts are using Supreme Court facts today, and then argues that these factual precedents are unwise. The Supreme Court is not a fact-finding institution, facts change over time, and – unlike legal precedents – one cannot be assured that factual statements from the Supreme Court are carefully deliberated and carry the force of law. I argue that Supreme Court statements of fact should not receive any authoritative force separate from the force that attaches to whatever legal conclusions they contributed to originally. If a fact is so central to the legal holding that the two melt together, then the Court is free to so state and thus insulate the factual conclusion from future challenge; but the precedential treatment would come only from the legal component of the decision. The default rule, I suggest, should be no precedential value for generalized factual claims – even ones that can be found in the U.S. Reports.

In my work on researching Constitutional Places, I have found that the Supreme Court frequently (a) adopts facts outside the record which have not gone through the rigors of discovery and fact-finding, (b) ignores facts in the record that are not convenient, or (c) just gets facts wrong. I appreciate the fact that the Justices are addressing broader issues. Though, the lower courts should recognize this, and cite accordingly.