Skepticism of Social Fact-finding in Constitutional Litigation

Here’s an interesting paper: Appellate Review of Social Facts in Constitutional Rights by Caitlin Borgmann, forthcoming in the California Law Review. This isn’t my area, so maybe my reaction is way off. But I think the major reason the law rejects clearly erroneous review of social facts is our suspicion that trial judges are not particularly likely to find social facts honestly or fairly.

Here’s my thinking. As a practical matter, the power to insulate social facts from appellate review under a clearly erroneous standard often translates into a single randomly-assigned judge’s power to determine what rule of law the courts will adopt with respect to that issue. If clearly erroneous review applied, the temptation to use social facts to guarantee a preferred outcome would be intense — especially in high-profile, politically-charged cases. Given our suspicions that trial judges will often struggle to find those facts honestly and fairly in such cases, clearly erroneous review threatens to create a world in which our legal rules are determined by the personal policy preferences of the trial judge who happens to be randomly assigned to a case. It’s hard to justify such a world, I think. So appellate judges naturally exempt social facts from clearly erroneous review in order to avoid that result.

That’s my sense, at least; if I am missing the point, I hope readers will set me straight. Thanks to Legal Theory Blog for the link.

UPDATE: Professor Borgmann graciously responds below the fold:

You raise a very important concern. I think that this concern, however, is most relevant to two particular sub-categories of social facts: “ultimate facts” (those that are so closely related to a legal question as to be determinative of it) and moral judgments masquerading as “facts.” I exempt both of these from my framework because of the importance of appellate authority over lawmaking, and, in the case of morally laden “facts,” because it seems to me that trial judges have no greater competence to find them.

It is true that more plainly empirical social facts, the kind I address in the article, can be indirectly determinative of legal standards, and trial judges are surely aware of this. But that risk exists even without clear appellate deference. In the California Prop 8 case, Judge Walker was accused of finding facts tendentiously, despite the obvious confusion among courts and legal experts about how those facts would and should be treated on appeal. Trial judges will have trials on social facts, and they will find facts (unless we want to propose a much more radical change to the system). Thus, the temptation you describe exists already. But I don’t believe there’s reason to think things will be better on appeal. We can all think of examples of egregiously tendentious factual declarations made by Supreme Court justices. In fact, because there are no standards for factfinding on appeal, the temptation is all the greater there. Nor do I think that there is a workable way of improving the factfinding process at the appellate level (again absent radical reforms that would have profound implications for how we think appellate courts should function).

I believe that the trial procedure, for all its faults, ensures more objectivity and predictability in the factfinding process than on appeal. I give examples in the article of cases like the “partial-birth abortion” ban trials, where a dozen (out of 13) different district judges, appointed by Presidents of both parties, overwhelmingly agreed on the medical facts. Of course, no system will guarantee that judges at any level will find facts with integrity. I think the clearly erroneous standard, coupled with factors like the ones I propose in the article for identifying “clear error,” would do the best job of ensuring unbiased, fair factfinding.

Thanks very much to Professor Borgmann for the thoughtful response. I’m not sure I fully understand the difference between social facts so closely related to a legal question as to be determinative of it and moral judgments masquerading as facts, on one hand, and usual social facts, on the other.  But putting that aside, I think there are good reasons to think it is significantly less problematic to run the risk f appellate court judges making bogus factual declarations than to run the risk of trial judges making bogus factual declarations. That’s true for two reasons.  First, if an appellate judge make bogus claims about social facts, we realize that these declarations have no legal significance. The “facts” are not binding in any sense or have any weight in further proceedings.

Second, if we accept as given the realist point that judges are going to rule in part based on their policy preferences at least in some set of these cases, and will use “facts” to get there, it seems to make more sense to give that power to the highest tier of judges rather than the lowest tier of judges.  If we have only two choices, why let a single random district judge set national policy instead of a panel of 9 Supreme Court Justices? For better or worse, the overall ideological direction of the Supreme Court is a matter of constant attention in our political system. When it gets out of whack, the national political system responds, as it did when Richard Nixon ran against the Warren Court in the 1960s. Given the options, and accepting as fixed that judges are going to be influenced by their ideological views, it seem more democratically accountable to allow the overall direction of the Supreme Court to influence national policy rather than to have a single randomly-selected trial judge have that influence. Anyway, thanks again to Professor Borgmann for the exchange.

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