Saturday, March 17, 2012
Alli Orr Larsen's article, Confronting Supreme Court Fact Finding, forthcoming in Virginia Law Review and available on ssrn, takes as it starting point the generalized facts that many readers of Supreme Court constitutional opinions notice the Court claims to know - - - and that the majority and dissenting opinions may not agree upon. Larsen gives a few examples - - - "is a partial birth abortion ever medically necessary? Can you effectively discharge a locked gun in self-defense? Are African American children stigmatized by segregated schools?"
The article "collects 100 examples of factual authorities relied on in recent decisions of the U.S. Supreme Court that were found “in house” – i.e. that cannot be found in any of the party briefs, amici briefs, or the joint record." She shows that "of the 120 cases since 2000 that political scientists label the “most salient Supreme Court decisions” – largely measured by whether they appear on the front pages of newspapers– 58 percent of them contain at least one assertion of legislative fact supported by sources found 'in house.' " Some of these facts are historical, with obvious implications for original intent interpretative strategies. The most common, according to Larsen, are facts, including statistics, "to demonstrate the emerging significance of a question to society."
Larsen contends that the information revolution has changed the way the Court sources its fact:
The digital revolution has two palpable relevant effects: it increases the amount of factual information available for review (statistics, social science research, polling data can all be posted to the world for free by anyone now) and it also makes this information faster to obtain -- literally just fingertips and a Google search away.
Larsen argues that while there are certainly benefits to letting judges research freely in a new digital age in which more information is available, there are also troubling effects: the systematic introduction of bias; the possibility of mistake; and concerns about notice and legitimacy.
She also has some suggestions, including a more open process in which "when the Court contemplates a question of legislative fact, it would solicit opinions and evidence from all interested parties and encourage public participation much like the notice and comment process in administrative agencies."
One can only imagine the comments section of a newly enhanced Supreme Court website! And for conlawprofs who allow open internet access during class, it could be a terrific exercise to take a moment and allow students to "check" a legislative fact in a Supreme Court opinion assigned for that class.
Larsen's article is a great contribution to the problem of "legislative facts" and a forward-looking reality-check to constitutional adjudication in the information age.