On the point about fact‐finding, it’s uncontroversial when the Supreme Court takes facts into account to assess reliance interests and other factors that go into proper jurisprudence, depending on the appropriate standard of review and procedural posture. But then there’s the distinction between “adjudicative” facts—those that “relate specifically to the activities or characteristics of the litigants, and are facts that would typically go to the jury in a jury trial”—and “legislative” facts, information about the world that helps the court decides questions of law and policy. Appellate courts generally aren’t supposed to perform independent investigations to develop adjudicative facts. Just last week, the Court considered when a circuit court may review matters outside the trial record to determine whether a district court’s error affected a defendant’s substantial rights or impacted the fairness, integrity, or public reputation of the trial.
U.S. Senate Judiciary Committee
Subcommittee on Federal Courts, Oversight, Agency Action and Federal Rights
Chairman Whitehouse, Ranking Member Kennedy, and distinguished members of the Subcommittee, thank you for this opportunity to share my thoughts on the Supreme Court’s judicial process, especially as it relates to fact‐finding. I actually think that the hearing title is a bit loaded: first, because the Supreme Court doesn’t generally engage in fact‐finding in the way trial courts do, but rather applies the law to novel facts, as any appellate court is supposed to; and second, because however much one thinks American democracy is “distorted,” the Supreme Court, a reactive institution, is hardly at fault. Indeed, the court is the most respected government institution other than police and the military, so hand‐wringing over its role in governance—or broader questioning of its legitimacy—principally arises when the justices rule in ways that disagree with progressive orthodoxy or, more broadly, when progressives are frustrated that there’s a major institution they don’t control. The chairman himself filed a brief in last year’s Second Amendment case admonishing the Court to “heal itself before the public demands it be restructured in order to reduce the influence of politics.”