WASHINGTON (CN) — One of the Senate’s most prominent Supreme Court critics on Wednesday floated the idea that Congress could step in to block the high court from what he characterized as efforts to manipulate facts in cases that benefit Republican special interests.
Under the leadership of Chief Justice John Roberts, the Supreme Court has had a “near-uniform pattern of handing down rulings benefitting identifiable Republican donor interests” on a smattering of issues including reproductive rights, immigration and health care, wrote Rhode Island Senator Sheldon Whitehouse in an article published in the Ohio State Law Journal.
The Roberts court has presided over more than 80 5-4 rulings on issues advancing GOP policy priorities with few exceptions, he said, contending that the high court’s current conservative supermajority has pursued “results-oriented jurisprudence” for Republican political operatives.
A pattern of “extra-record fact finding” has contributed to these decisions, Whitehouse said — arguing that justices have repeatedly and improperly undertaken efforts to manipulate the facts of cases in which a lower court, or Congress, has already established a factual record.
Such malfeasance means taking the Supreme Court’s decisions on faith “is no longer automatically justified,” he said. “Too many decisions are delivered goods, not judicial work.”
The lawmaker pointed to several historical cases, including the high court’s 2010 decision in Citizens United v. FEC and its 2013 ruling in Shelby County v. Holder, in which he argued that the justices deliberately ignored facts gathered by Congress and inserted their own conclusions.
A similar trend has played out since conservatives clinched a supermajority on the high court in 2021, Whitehouse said, pointing to what he called “dubious fact finding” in its recent rulings such as in the 2022 case Dobbs v. Jackson Women’s Health Organization, which rescinded the constitutional right to abortion.
This fact-finding adventurism enables judicial overreach and threatens constitutional separation of powers, the lawmaker wrote. “A Supreme Court untethered from the fact finding of a trial court,” or Congress, “can craft facts that let it roam widely into policymaking,” he said.
Allowing the high court to pave over the factual background of constitutional issues is particularly damaging, Whitehouse contended, because those questions often concern fundamental rights or the powers of the American people.
Such practices also run afoul of longstanding norms and practices for federal appellate courts, Whitehouse argued, pointing out that appeals courts are generally bound to the factual records established by parties litigating in lower courts and that judges are largely ill-equipped to undertake their own fact-finding missions.
In instances where an appellate court reveals an obvious error in a trial court’s set of facts, he said, the traditional response is to send the case in question back down the pike rather than begin a separate fact-finding effort.
The Supreme Court has also incorrectly applied its own sets of facts on more than one occasion, Whitehouse said.
In Citizens United, which struck down campaign finance reforms passed by Congress, the high court discarded lawmakers’ “meticulously compiled findings” and replaced them with their own, said Whitehouse. While justices argued that their decision to roll back the law would not give rise to government corruption, the ruling contributed to skyrocketing political spending by special interests “to the immediate partisan benefit of Republican special interests,” he argued.
A similar scenario played out in Shelby County, in which the Supreme Court overrode congressional findings and gutted aspects of the Voting Rights Act based on their own facts, a move that Whitehouse said led to “rampant voter suppression.”
“In both decisions, the facts found were not just drive-by errors, but essential to the result the court reached,” the lawmaker wrote. “And in both cases, the facts were false.”
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