Factual precedents.

• Author: Larsen, Allison Orr
• Position: Tendency of lower courts to cite Supreme Court decisions as authorities on factual subjects, due to their use of empirical data, as evidence to the truth of factual claims - III. What Sort of Authoritative Force Should Attach to Supreme Court Statements of Fact? through Conclusion, with footnotes, p. 97-115

3. WHAT SORT OF AUTHORITATIVE FORCE SHOULD ATTACH TO SUPREME COURT STATEMENTS OF FACT?

   With some examples now in mind, we must tackle the question that lurks behind any discussion of precedents: How should judges treat statements from the past in making decisions in the present? And specifically, how much weight, if any, should lower courts give to prior Supreme Court statements of fact?

   First, an important clarification is in order. Fred Schauer has effectively refined the concept of precedent to explain that there is a difference between precedent as a rule and precedent as valuable experience. (221) The latter type of precedent (although perhaps misnamed) is when one decisionmaker is "[u]nwilling or unable to do as much thinking, looking, or testing as a previous decisionmaker.... 'If Cardozo decided this way who am I to disagree?" (222) For that type of precedent, if we truly believe the first decision was incorrect, we will reject the value of the experience. By contrast, a true rule of precedent is a "norm limiting the decisionmaker's flexibility," which means that "the fact that something was decided before gives it present value despite our current belief that the previous decision was erroneous." (223)

   This distinction is critical to bear in mind when confronting factual precedents. Unless a court tells us (which it often does not), it is impossible to know what weight a judge gives to a Supreme Court statement of fact. Even if, as in all of the examples discussed in Part II, the judge uses the Court's old factual claim to answer a dispositive question before it, we still do not know whether she felt bound to do so, or merely did so because the words were easy to find and had a special, prestigious U.S. Reports citation attached to them.

   At the end of the day, however, this uncertainty should not detract from the normative concerns one has about factual precedents. We know that lower courts rely on Supreme Court facts as authority because they cite to these facts to explain how they reached important aspects of their decisions. And that citation to authority matters in and of itself.

   Law is, after all, "an authoritative practice": what matters is not just the reason, but also from where it comes. (224) "[T]he fabric of law," as Abbe Gluck explains, is formed through judicial opinions. (225) Thus, she states, methodology within those opinions matters, "[e]ven if one cannot prove that methodology dictates outcomes." (226)

   The reasons a court gives for its decision and what it cites to support those reasons matter to litigants (particularly if their arguments are refuted by such authorities). (227) Those authorities also matter to future litigants who present the same issue later. Whether a judge felt bound by a factual authority that he cites, future lawyers and future judges know not and care not. That authority becomes part of the legal decision, with explanatory power now and persuasive power later. In the words of Fred Schauer, "[T]o say 'x because of y' is not only to say x, but to say y as well." (228) There are consequences, in other words, and commitments that attach when a legal decisionmaker gives reasons for her decision. (229) To fret about authorities, therefore, even if they are not binding on the decisionmaker, is to worry about the very backbone of the legal process itself. (230)

   This next Part addresses what sort of authoritative force Supreme Court facts should carry. Two potential weights are considered: factual statements could be binding on lower courts, or they could be especially persuasive by virtue of having been decided by the Justices. I reject both possibilities and argue against recognizing factual precedents at all. In short, generalized factual claims from the Supreme Court should not receive any precedential value separate and apart from the legal rules they helped to create.

   1. Binding Authority: A Stare Decisis of Fact?

      One possibility is that factual claims adopted and approved by the Supreme Court should bind lower courts faced with those same factual questions later--a "factual stare decisis" if you will. (231) To my knowledge, no scholar has argued that a factual precedent should bind lower courts in any formal sense, (232) but it appears some lower courts are treating Supreme Court factual claims in precisely this manner, even if they are doing so in an unthinking and undefended way. It is a useful exercise, therefore, to consider the possibility of a factual stare decisis and then to identify precisely what problems it creates.

      The argument for factual stare decisis, an argument that would approve all of the factual precedents discussed above, would be about efficiency and institutional competence. The Supreme Court is better equipped than lower courts to handle questions of fact--such as social science data on juvenile brain development--because the Justices hear fewer cases than any other court and thus have the luxury of time and the benefit of extensive briefing by experts, often as amici. If we want better judicial decisionmaking on tough empirical questions of fact, the argument goes, then we should assign the responsibility to the judges with the time and resources to evaluate multiple studies, look into methodological strengths and weaknesses across them, and evaluate their credibility. Given these institutional advantages, at least relative to other courts, (233) the Supreme Court is the best judicial institution to settle generalized questions of fact that affect litigation.

      Benefits of this approach are similar to the benefits of stare decisis generally: uniformity, efficiency, and predictability. (234) Most of these justifications for stare decisis, both vertical (the obligation of lower courts to follow rules of higher courts) and horizontal (the obligation of one court to follow its own precedent), share the common goal of furthering the rule of law. (235)

      Scholars debate whether a strong conception of stare decisis is worth it: What good is predictable uniform law if it is wrong? (236) Without wading into those waters, however, note that virtually everybody believes that legal precedents subject to stare decisis are made carefully: they are powerfully argued, slowly deliberated, and meticulously justified by multiple people. Even if one thinks a legal rule handed down by the Supreme Court is wrong, one can at least be assured that it was the product of much process and deliberate thought. This careful deliberation alone buttresses the rule of law, which, Fred Schauer explains, makes us "feel better." (237)

      Factual precedents cannot claim the same thing. They may not be the product of careful deliberation. Facts--at least the type of generalized facts about the world I am concerned with--are often marshaled by Supreme Court Justices to build arguments and to tell a "story." (238) This has several implications. For one thing, it means that factual authorities are selected for a reason distinct from how likely they are to be accurate. As one judge candidly explained, a judge "picks her rhetoric to foreshadow the result." (239) And she picks her factual claims the same way. "Motivated reasoning" and "confirmation bias" are terms psychologists use to describe this phenomenon--we look for sources to support what we already think we know. (240)

      A consequence is that there is less trust that the authorities are correct, particularly for factual questions that are controversial and the subject of easily accessible data from sources with highly variable reliability. Supreme Court factfinding has changed since the dawn of the digital revolution. As I have observed elsewhere, Supreme Court Justices, like the rest of us, are now surrounded by factual information literally at their fingertips. (241) They no longer need to rely predominately on the adversarial system to supply evidence on factual questions; they can just Google for data, empirical studies, claims in secondary sources, and newspaper accounts. Of course, some information on the Internet is reliable, but some of it is not. And the tremendous increase of data available to research means there is almost always evidence to support a preexisting view regardless of its reliability. (242) To the extent Justices are researching factual questions on their own, the resulting claims can suffer from unrealized bias or be just plainly incorrect. (243)

      Exacerbating this situation, factual authorities cited in a Supreme Court opinion are very likely selected solely by the Justice writing the opinion to make his case to his colleagues. While we can be sure that a legal holding that garners five votes at the Court is debated by all of the Justices, the same assumption cannot be made about the factual claims that pepper the footnotes. Most of the time, presumably, facts mounted to frame an argument are not discussed at conference; they are added later by the opinion writer at the time the opinion is written. While it is fair to assume all Justices who sign on to an opinion have read the factual claims it contains, we cannot have the same confidence that the Justices have critically examined every factual source cited in the footnotes given the time constraints of litigation. (244) Particularly for factual claims that are not central to the dispute, it seems unlikely that a source selected for its rhetorical appeal will be subject to careful scrutiny by all of the Justices who sign on to the opinion.

      Another reason to fret about a practice of binding factual precedents is that our understanding of the world changes over time. A fact considered true in 1955 may seem laughable in 2015. Take, for example, the seemingly progressive factual claim, made famous in the Brandeis brief relied on in Muller v. Oregon in 1908, that long working hours jeopardize the "general welfare, health and morals" of women. (245) It is too easy with the benefit of hindsight to criticize the Supreme Court for relying on this...