Judging facts like law.

• Author: McGinnis, John O.

INTRODUCTION

The Supreme Court's review of legislative facts found by Congress can make all the difference between enjoying a constitutional right and losing it. The Court's recent decision in Gonzales v. Carhart (1) powerfully illustrates this point. There the Court in an opinion by Justice Kennedy held that women did not possess a right to a "partial birth" abortion, although six years previously in Stenberg v. Carhart (2) the Court held the opposite. According to Justice Kennedy, one of the two key differences between the current and prior case was that in Gonzales Congress had found that the practice was a "gruesome and inhuman procedure that is never medically necessary." (3)

The opinion, however, also underscores the peculiar and radically under-theorized nature of the treatment accorded congressional fact-finding. Justice Kennedy admitted that several of Congress' other findings about partial-birth abortions were factually incorrect. (4) The patent infirmity of many of Congress' fact assessments on the very subject under consideration raises obvious questions about why the Court should be influenced by any of Congress' other findings.

Second, the Court actually did not defer to the Congress' strong conclusion that partial-birth abortions were never medically necessary, but to the weaker implicit claim that it was at least uncertain whether partial-birth abortions were ever medically necessary. (5) The Court argued that this weak claim was all that was necessary to sustain the facial constitutionality of the statute because Congress should have the discretion to regulate abortion under conditions of medical uncertainty. (6) Thus, the Court reconstructed Congress' fact-finding before giving it weight.

Moreover, the opinion provides completely unconvincing support for its stance toward congressional fact-finding. Justice Kennedy cites precisely one case in his discussion of why the Court should give weight to congressional fact-findings but not simply accept them. The case is Crowell v. Benson, (7) a famous administrative law decision from seventy-seven years ago in which the Court considered the question of how to scrutinize facts for ascertaining that work had taken place in navigable waters--a premise that was necessary to establish that federal jurisdiction over the workmen's compensation claim was constitutional. (8) But in the relevant portion of that case the Crowell Court was reviewing an administrative agency's fact-finding, not Congress'. (9) Moreover, the Court held that the findings necessary to establish the constitutional authority to extend federal jurisdiction were subject to the federal judiciary's de novo review, not a review with any degree of deference. (10) The current Court's citation of such a manifestly inapposite case highlights that it still has no coherent theory of the judicial role in cases where Congress has found social facts to support to the constitutionality of its legislation.

This article responds to the Court's confusion about fact-finding in the partial-birth abortion case by offering a comprehensive view of how the Court should treat legislative views of social facts, such as the medical need for partial-birth abortions, which provide an essential foundation for the constitutionality of legislation. We reject the notion, which the Court often but inconsistently deploys, that the judiciary should treat legislative views of the facts more deferentially than legislative views of the law.

Displacing the judiciary from an independent, de novo fact-finding role must depend either on the argument that law is inherently different from fact or that Congress has a greater comparative advantage vis-a-vis the judiciary in finding social facts than in assessing the law. Neither is supportable. There is no analytic dichotomy between law and fact. Law is a social fact, just as are the data or statistical analysis that may be relevant to questions such as whether partial abortions are ever medically necessary.

Thus, the key question about whether the judiciary should defer to Congress' fact-finding or rely on its own assessment of social facts is functional. If Congress had a superior ability to find facts, deference might make sense. But we show that Congress' fact-finding abilities are less capacious and more biased than those in the judiciary. As an elected body, Congress is designed to respond to its constituents' subjective desires, not to the objective facts of the world. In contrast, the judiciary is insulated from the preferences of constituents and less subject to partisan bias. Its salient institutional structure is the adversarial proceeding where each side has incentives to scrutinize relentlessly the factual claims of its opponent. Accordingly, the judiciary would appear to be a superior fact-finder both because of its institutional capacity and because of its relative lack of bias.

In arguing for independent judicial evaluation of facts necessary to assess legislation's constitutionality, we do not suggest that the Court should sit in oversight of the record of Congress' fact-finding. It may well create tension with the separation of powers for the judiciary to sift through facts Congress has found. But it does not follow that a judiciary that declines to sit in judgment on the internal work product of a coordinate branch should not compile its own factual record to test the constitutionality of a statute.

Indeed, the separation of powers supports a de novo judicial role in fact-finding. It is now well established that each branch of government has the responsibility to measure the text of legislation against the Constitution. By similar logic, each branch has the obligation to determine whether facts support the constitutionality of legislation. For instance, if the constitutionality of partial-birth abortion turns on the question of whether partial birth abortions are ever medically necessary, each branch should make this determination for itself. Just as the departmental approach to constitutional interpretation safeguards the rights and structures of the Constitution by subjecting the constitutionality of legislation to multiple scrutiny in legal interpretation, so too does a departmental approach to constitutional fact-finding.

One reason the Court has been so inconsistent in taking responsibility for fact-finding is that it has never laid out procedures for doing so. Successful procedures require transparency and the right of all parties to be heard in an adversary process because these are the characteristics of judicial fact-finding that increase the capacity for accuracy and decrease the risk of bias.

Our article proceeds in four parts. Part I considers the Supreme Court's treatment of legislative or social facts that provide a necessary predicate to the constitutionality of legislation. We first show how these social facts differ from the adjudicative facts. Second, this section shows that the Court's implicit or explicit determination of social facts has been essential to many well known holdings. Third, we show that the Court has been inconsistent and result oriented in its approach to social fact-finding. Even within the same area of law, such as the First Amendment, the Court has sometimes deferred to Congress and sometimes has not. It has sometimes relied on a lower court record of facts entered into evidence, but sometimes it has taken "judicial notice" of controversial facts for itself.

In Part II, we review scholarly treatments of the judiciary's role in finding social facts. Unfortunately, most previous scholars have failed to provide a useful framework of analysis. First, many tend to complain about the Court's deference to congressional fact-finding or lack thereof in a particular area of law, like the recent federalism cases. In our view, this focus confuses the specific question of whether judicial scrutiny of the legal area is appropriate with the general question of whether judicial scrutiny of social facts is appropriate. Second, other scholars have recently attacked the Court for reviewing the record of fact-finding compiled by Congress. We agree with this criticism, but do not believe it shows that the Court should not be engaged in it own fact-finding. We also briefly distinguish our analysis from that of other scholars, such as Richard Posner, who argue that legal doctrine should depend more on analysis of social facts than formal rules. Our point is more limited: whenever legal doctrine requires the analysis of social facts, the judiciary should analyze the social facts for itself de novo.

In Part III, which is the heart of our analysis, we show that the legislature has no advantage in social fact-finding compared to the judiciary. First, we demonstrate that there is no sharp analytical difference between legal interpretation and social fact-finding. Second, we offer two kinds of analysis that suggest that the courts are at least as competent as Congress in finding facts. The first analysis, drawn from public choice theory, regards members of Congress as interested primarily in reelection. As a result, they will tend to focus more on the preferences of constituents rather than objective facts. We also broaden the traditional focus of public choice to consider the incentives of the public at large. We show these incentives will also undermine the accuracy of congressional fact-finding, because the public expects Congress to find the facts that support its preferences, rather than the actual facts. Our second analysis relaxes the public choice view and permits members of Congress a substantial independent interest in the accuracy of the facts. Nevertheless, because of cognitive biases, such as the confirmation bias and the availability heuristic, Congress remains less likely to find facts accurately than is the judiciary with its more disciplined, adversarial methods.

Finally, we show that the increasing consensus on...