Supreme Court decisionmaking treats the line separating law from fact as consequential, often outcome-determinative. Court decisions do not even hint at the possibility that the Court's choice of whether it should create fact-dependent standards of review or, alternatively, fact-insensitive rules is a by-product of exogenous variables, including the Justices' views on congressional factfinding. Rather, the Court speaks in platitudes about how "say[ing] what the law is" is at the core of Article III. In contrast, the power to find facts, while not irrelevant to the exercise of judicial authority,(1) is not considered central to the judicial function.(2) Indeed, pointing to Congress's "role of weighing conflicting evidence in the legislative process,"(3) the Court treats the separation of powers as demanding a de minimis judicial role in questioning the accuracy of such findings.(4)
Part I of this Essay challenges this longstanding assumption, arguing that the law-fact divide is a shibboleth, something that the Court invokes to justify a conclusion about whether it or Congress should settle an issue, not something with independent analytical force. Correspondingly, this Essay suggests that when employing fact-dependent reasoning, the Court is speaking more of its agreement with Congress on the merits than anything else.
Part II casts doubt on a related assumption, namely, that as a matter of comparative institutional competence, the Court is better at sorting out the law and legislators are better equipped to get the facts right. In particular, while Congress has superior factfinding capacities, it often lacks the institutional incentives to take factfinding seriously.
By calling attention to how problematic and difficult it is for the Court to navigate the law-fact divide, this Essay is a first step in redirecting attention to the real world problems of drawing sharp and discernible lines separating the judicial and legislative functions. Part III ventures beyond these positive claims and tackles the question of how the Supreme Court ought to take into account Congress's interest in getting the facts right. Through the use of case studies, Part III offers a preliminary assessment of the ways in which the Court can sort out whether Congress has the proper incentives to take factfinding seriously. In so doing, Part III also draws attention to a paradox in constitutional decisionmaking--the Court's employment of open-ended, fact-dependent standards often make it difficult for the Court to take a hard look at congressional factfinding. Specifically, because of limits on its own factfinding, the Court cannot disavow traditionalist assumptions (embraced in Court decisionmaking) about both Congress's comparative advantage in factfinding and Congress's authority, under the separation of powers, to sort out the facts underlying its handiwork. Consequently, by describing an issue as one of fact, not law, the Court, in effect, is saying that Congress is the branch best positioned to decide the matter.
This Essay aims at advancing not only a system of empirically informed constitutional jurisprudence(5) but also a system that allows Congress, when circumstances warrant, to play a decisive role in the shaping of constitutional values. In particular, rather than sort through the legitimacy of courts "making policy" through the application of fact-dependent balancing tests, this Essay is intended to push the Supreme Court to embrace standards of review that take into account the comparative institutional strengths and weaknesses of both Congress and the courts. Sometimes these standards will favor the government (when Congress is a reliable factfinder); sometimes these standards will limit governmental action (when, for example, congressional factfinding is little more than a recitation of special-interest preferences).(6)
By highlighting the contaminating impact of …