Judicial Fact-Finding Questioned at Senate Hearing

Senators zeroed in on the Supreme Court’s use of facts outside the case record when forming opinions and examined how information presented to the justices can sometimes be unreliable.

The U.S. Supreme Court. (Courthouse News photo/Jack Rodgers)

WASHINGTON (CN) — The information Supreme Court justices rely on for writing their opinions, and how occasionally incorrect or incomplete facts are used to form the court’s rulings, was debated at length Tuesday during a Senate Judiciary subcommittee hearing.

Of particular interest to Rhode Island Senator Sheldon Whitehouse, a Democrat who leads the Judiciary’s subcommittee focused on oversight of federal courts, were cases like Shelby County v. Holder, a 2013 decision by the high court that stripped two sections of the Voting Rights Act. The justices held that the law unconstitutionally required states and localities with a history of race discrimination to clear changes to election procedures with the federal government.

Senators heard from a range of witnesses Tuesday, including Theodore Shaw, director of the Center for Civil Rights at the University of North Carolina, who said the Supreme Court’s straying from the congressional record presented on the issue in Holder had affected the court’s ability to judge where the country currently stands with respect to racial divisions.

Some 15,000 pages submitted to the justices outlining the utility of those specific Voting Rights Act sections were imperative for building the case, Shaw said. But Chief Justice John Roberts wrote that the record was based upon a nearly half-century-old set of facts involving restrictions on access to the ballot for voters of color.

“That was not the set of facts that Congress relied upon when it enacted the extension of the Voting Rights Act in 2006. Quite to the contrary, it relied on a record that had been updated that looked at the jurisdictions that were covered … And it based its legislation in 2006 on that record, not the 40- or 50-year-old record to which the chief justice pointed,” Shaw said.

Whitehouse noted the inability for lawmakers to remedy those types of factual issues, asking lawmakers to imagine the court was reviewing pandemic restrictions and had found the virus could be cured by injecting bleach — a reference to comments made last year by former President Donald Trump.

“And imagine that that were not true,” Whitehouse said. “You’d have undercut government’s ability to deal with the pandemic, you’d have done so in a completely false and manufactured factual assertion, and where do you go for that? If it’s the Supreme Court, there’s no further court of appeal and if the Supreme Court wants to sit on that fact and never correct it, there’s no vehicle to correct its hand.”

Senators also focused on the high court’s 2010 decision in Citizens United v. Federal Election Commission, which opened the floodgates for corporations to donate to political campaigns through committees. Whitehouse noted the fact-finding undertaken by the majority, which downplayed the risk of corruption in corporate campaign donations, was notably flawed.

“All of these facts that the Supreme Court found upon which the Citizens United decision hinged are provably wrong,” Whitehouse said. “Corruption can exist because of unlimited spending and indeed it has emerged, just look at the end of climate legislation.”

Indiana Solicitor General Thomas Fisher testified Tuesday and offered some pushback on concerns over judicial fact-finding. Bringing extra, relevant information to the court’s attention is a time-tested practice, Fisher said, particularly involving legislative facts — those not related to a particular party.

“Supreme Court justices and lower court judges alike can distinguish between the two and ultimately dismiss attempts to advance extra record adjudicative facts,” Fisher said. “That is not to say that no tension exists between the idea of Supreme Court legislative fact-finding and the idea of democratically accountable decision-making.”

He added: “In short, when the state of the world is reasonably disputed, we generally look to legislatures, not courts, to make the critical decisions as limited by constitutional safeguards protecting individual liberty.”

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