How Much Do the Factual Findings Matter in Perry v. Schwarzenegger?

Judge Walker’s opinion in the same-sex marriage case is notable for its factual record. As a commenter to Andrew Sullivan’s blog writes:

What strikes me about Judge Walker’s opinion is the amount of evidence he included there – numbered, paraphrased facts with direct citation to and quotation from the trial record. As a lawyer, I can’t say that I have ever seen a judge include that much of the trial transcript in an opinion. He would have done this to make his record so that when the case is appealed – as everyone knows it will be – he has included enough direct evidence produced at trial to support his application of the law. His clerks made that trial record their bitch, and Judge Walker took that dog for a walk.

Dahlia Litwhick makes a similar point, focused on Judge Walker’s attention to the Supreme Court’s swing vote. According to Dahlia, the opinion was largely an effort to persuade Justice Kennedy, and the fact sections of the opinion tried to “knit together the trial evidence, to the data, to the nerves at the very base of Justice Kennedy’s brain.”

The question is, how much will those factual findings matter on appeal?

If the Supreme Court agrees to hear the case, I don’t think the factual record will matter very much. I think that for three main reasons. First, the Justices will know that this case presents a defining moment for their respective tenures on the Court. This will be one of the biggest decisions of their careers, and its importance transcends a single trial before a single judge with a particular set of witnesses. These sorts of mega-big-picture cases tend rest less on the details of the factual record than other cases. Second, the Justices will certainly recognize the same point that Dahlia Lithwick and the Sullivan commenter made — that is, Judge Walker was trying to use his facts to make an argument designed to persuade the Justices to agree with him. For better or worse, I suspect a majority of the Justices will respond to that dynamic by significantly discounting those facts.

Finally, a majority of the Court had relatively harsh language about Judge Walker’s rulings on broadcasting the trial when it took the remarkable step of overturning his order back in January. This passage at the end of the Supreme Court’s per curiam opinion stands out:

The District Court attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district. Not only did it ignore the federal statute that establishes the procedures by which its rules may be amended, its express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue. If courts are to require that others follow regular procedures, courts must do so as well.

That’s not the kind of language that suggests that a majority of the Justices will be overly inclined to defer to the Judge’s factual findings in the resulting trial.

Of course, none of this is to say that the factual findings don’t matter at all. And if the Supreme Court takes the case and agrees with Judge Walker, the Court may discuss them extensively in the opinion. But I suspect the facts in this particular case will matter a lot less than many folks think.